Lyon
J.A.:
The
applicants
in
each
of
these
matters
seek
leave
to
appeal
from
orders
of
the
Municipal
Board
of
Manitoba
(the
Board)
affecting
the
assessment
of
properties
in
the
City
of
Winnipeg.
Leave
may
only
be
granted
on
a
question
of
law
or
jurisdiction.
Argument
on
the
two
applications
was
heard
together.
The
issue
common
to
both
is
whether
the
Board
of
Revision
or
the
Board
may,
on
appeal
by
the
property
owner
alone,
increase
or
validate
an
assessment
where
the
Assessor
has
failed
to
file
an
application
for
revision
or
appeal
to
either
body.
The
factual
differences
in
the
background
of
each
application
are
as
follows:
(1)
In
Valley
Gardens,
the
subject
property
was
assessed
by
the
assessor
in
1997
at
$3,699,000.
Valley
Gardens
applied
for
a
revision
to
the
Board
of
Revision
pursuant
to
s.
42(1)
of
The
Municipal
Assessment
Act,
S.M.
1989-90,
c.
24
C.C.S.M.,
c.
M226
(the
Act).
The
Assessor
did
not
apply
to
the
Board
of
Revision
for
a
revision
but,
at
the
hearing,
requested
an
increase
in
the
assessed
value.
The
Board
of
Revision
ordered
the
realty
assessment
to
be
increased
to
$4,050,000.
From
that
order
Valley
Gardens
appealed
to
the
Board
which
confirmed
the
increased
realty
assessment
set
by
the
Board
of
Revision.
(2)
In
79912,
the
Assessor
assessed
the
subject
property
for
1997
at
$2,125,800.
79912
applied
for
a
revision
to
the
Board
of
Revision.
The
Assessor
did
not
apply
to
the
Board
of
Revision
for
a
revision
of
the
assessed
value.
The
Board
of
Revision
ordered
that
the
1997
realty
assessment
for
the
property
be
confirmed
at
the
above
figure.
79912
appealed
this
order
to
the
Board.
The
Assessor
did
not
appeal
from
the
order.
Shortly
before
the
hearing
by
the
Board,
the
Assessor
filed
a
brief
requesting,
for
the
first
time,
that
the
assessed
value
be
increased
to
$2,380,000.
The
Municipal
Board,
on
October
1,
1997,
ordered
that
the
1997
realty
assessment
be
revised
upward
to
$2,284,000.
The
applicants
argue
that,
notwithstanding
recent
amendments
to
the
Act,
the
decisions
of
thisCourt
in
Orange
Properties
Ltd.
v.
Winnipeg
City
Assessor
(1995),
100
Man.
R.
(2d)
208
(Man.
C.A.),
and
[
Properties
Ltd.
v.
Winnipeg
(City)
Assessor]
(1996),
107
Man.
R.
(2d)
278
(Man.
C.A.),
and
W.R.E.
Development
Ltd.
v.
Winnipeg
City
Assessor
(1995),
100
Man.
R.
(2d)
202
(Man.
C.A.),
setting
out
the
procedure
for
appeals
of
this
nature,
still
apply.
Basically,
in
W.R.E.
and
Orange
Properties
the
Court
held
that
neither
the
Board
of
Revision
nor
the
Municipal
Board
had
the
power
to
order
an
increase
in
the
assessed
value
of
a
property
in
the
absence
of
an
application
for
revision
by
the
Municipal
Assessor
to
the
Board
of
Revision.
Counsel
for
the
Assessor
takes
the
position
that
the
1996
amendments
to
ss.
54(1)
and
60(1)
of
the
Act
enlarging
the
appellate
jurisdiction
of
the
Board
of
Revision
and
the
Board
fundamentally
altered
the
statutory
interpretations
given
by
the
Court
in
Orange
and
W.R.E.
A
second
issue
raised
by
the
applicants
in
Valley
Gardens
relates
to
the
Board’s
alleged
error,
without
hearing
argument
by
the
parties,
in
assessing
the
value
of
the
property
as
it
existed
in
the
year
of
the
appeal
(1997)
rather
than
the
reference
year
(1991).
The
Assessor
argues
that
the
effective
date
for
the
physical
state
of
property
for
appeal
purposes
is
the
first
day
of
the
general
assessment,
namely
January
1,
1994.
I
am
satisfied
that
the
applicants
have
made
out
questions
of
law
for
which
leave
to
appeal
should
be
allowed.
Accordingly,
leave
to
appeal
to
the
Court
of
Appeal
is
granted
on
the
following
questions:
•
With
respect
to
Valley
Gardens:
(1)
Did
the
Municipal
Board
err
by
confirming
an
increase
of
the
realty
assessment
of
real
property
in
the
absence
of
an
application
for
any
increase
by
the
City
of
Winnipeg’s
Municipal
Assessor
to
the
Board
of
Revision,
and
in
the
further
absence
by
the
Assessor
of
any
appeal
to
the
Municipal
Board?
(2)
Did
the
Municipal
Board
err
when
it
determined
that
it
“must
look
at
the
physical
condition
of
the
property
in
the
appeal
year
and
determine
the
value
of
the
property,
as
it
physically
exists
in
the
year
under
appeal
by
reference
to
the
economic
conditions
of
the
reference
year,”
or
must
the
assessment
be
made
on
a
consideration
of
the
physical
condition
of
the
property
as
it
existed
either
i)
in
the
reference
year
(1991);
or
ii)
the
first
day
of
the
general
assessment
(January
1,
1994)?
•
With
respect
to
79912:
(1)
Did
the
Municipal
Board
err
by
ordering
an
increase
of
the
realty
assessment
of
real
property
in
the
absence
of
an
application
for
any
increase
by
the
City
of
Winnipeg’s
Municipal
Assessor
to
the
Board
of
Revision,
and
in
the
further
.
absence
by
the
Assessor
of
any
appeal
to
the
Municipal
Board?
Leave
to
appeal
granted.
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