3391397 Manitoba Ltd. v. Winnipeg (City) Assessor I, [1998] 3 CTC 49

Scott C.J.M.:

The Municipal Board (the Board) granted the appeal of the respondent (the Assessor) from a decision of the Board of Revision of the City of Winnipeg which had substantially reduced the assessed value of the individual condominium units owned by the applicant. Before me now is an application for leave to appeal that decision.

The property in question consists of seven buildings with a total of 140 individual units. The properties were operated as an apartment complex until March 1996, at which time they were registered under Condominium Title No. 355 and the appellant acquired the properties. The property was initially assessed for the 1996 realty assessment year (based upon the reference year 1991) at $4.3 million. Later that year, the Assessor reassessed the properties at $8.77 million. The Board of Revision reduced the assessments to $5.87 million, but on appeal to the Board the original assessment was reinstated.

The undisputed evidence before the Board was that the appellant was engaged in a major effort to sell the condominium units from and after March 1996, but of the 140 units in the development 43 were vacant with no tenancy rights attaching to them, 20 were subject to tenancy rights in excess of two years, and 77 were subject to tenancy rights of two years from the date of registration of the condominium title.

Section 63 of The Municipal Assessment Act, R.S.M. 1988, c. M226; C.C.S.M., c. M226 (the Act), provides that an appeal lies from a decision of the Board to this Court only on a question of law or jurisdiction.

A long line of cases from this Court has established that the burden on an applicant in such circumstances is a significant one. The Court cannot be concerned with reassessing findings of fact. Unless a legal question can be identified without the Court involving itself in reweighing or reconsidering factual issues, leave to appeal will not be granted. See West-Man Culvert & Metal Co. v. Manitoba (Provincial Municipal Assessor) (1992), 81 Man. R.

(2d) 118 (Man. C.A. [In Chambers]) and West-Man Culvert & Metal Co. v. Manitoba (Provincial Municipal Assessor) (1992), 81 Man. R. (2d) 112 (Man. C.A.). Even if there is a valid question of law, this will not automatically result in leave being granted. The issue must be one of sufficient importance to engage the attention of the Court; it must be a matter of substance. See Wuziuk v. Manitoba (Director of Social Services) (No. 2) (1979), 3 Man. R. (2d) 81 (Man. C.A.) and Colony Square Ltd. v. Winnipeg City Assessor (1993), 88 Man. KR. (2d) 32 (Man. C.A.).

The relevant portions of sec. 5(2) of The Condominium Act, R.S.M. 1987, c. C170; C.C.S.M., c. C170, at the time the condominium declaration in question was registered, provided:

Special requirements for tenants

5(2) Where the property to which a declaration relates contains rental units that are occupied by tenants on the date the declaration is submitted to the registrar for registration, the declaration shall not be registered unless

(c) it contains a statement that the rights and duties of each tenant who, on the date of registration, is in occupancy under a tenancy agreement of any kind are continued in accordance with The Residential Tenancies Act; and

(d) it is accompanied by a statutory declaration that each tenant in occupancy on the date on which the declaration is registered has been of- fered an agreement in duplicate, together with a copy of this subsection, providing, in addition to the rights under clauses (c),

(i) that, despite any provision to the contrary in The Residential Tenancies Act, the tenant may continue in occupancy of the rental unit he occupies on the date of registration of the declaration for a period of at least two years after the date of registration of the declaration or, at the option of the tenant, for a period equal to the length of time the tenant has been in continuous occupancy of any rental unit in the property as of the date of registration of the declaration,

(ii) that where a landlord gives notice of an increase in rent to the tenant, the notice shall be given in accordance with, and the rent increase shall be subject to, the provisions of The Residential Tenancies Act,

(iii) that the tenancy may not be terminated by the landlord except for cause in accordance with The Residential Tenancies Act,

and

(iv) that the agreement is binding on the heirs, successors and assigns of the landlord, but is not assignable by the tenant.

Before the Board the appellant’s contention that the income approach to valuation as opposed to the cost approach should be adopted was rejected. The Board also rejected the appellant’s contention that the condominiums should be valued as a rental unit being satisfied that there was a market for the individual suites. Leave to appeal was not sought with respect to these issues, undoubtedly because they are factually based.

The appellant also argued before the Board that the operation of sec. 5(2) of The Condominium Act in the circumstances adversely impacted on the market value of the individual condominium units, since it gave the tenants tenured rights and forced the owner to become a landlord, in some instances for a period of time well in excess of two years. In response the Board concluded:

The Respondent did not indicate how many units be [sic] would be affected nor for what periods of time except for one tenant who had 17 years of continuous occupancy.

The Board finds that there was insufficient evidence to justify a reduction in assessed value for any unit. This would require an appeal of the assessment for a particular unit and evidence to show how its value had been affected by the tenant’s rights.

It is conceded that the Board in so stating was clearly wrong and misstated the evidence. The question I now have to decide is whether this man- ifest error is a question of law of sufficient substance to justify the granting of leave.

In certain limited circumstances an evidentiary error can constitute an error in law. The principle was succinctly put by Iacobucci J. in Canada (Director of Investigation & Research) v. Southam Inc., [1997] 1 S.C.R. 748 (S.C.C.) at 769:

Both provisions, so far as they go, are correct. If the Tribunal [the Competition Tribunal] did ignore items of evidence that the law requires it to consider, then the Tribunal erred in law. Similarly, if the Tribunal considered all the mandatory kinds of evidence but still reached the wrong conclusion, then its error was one of mixed law and fact. The question, then, becomes whether the Tribunal erred in the way that the respondent says it erred.

Cullen J., in Padda v. Canada (Minister of Citizenship & Immigration) (December 6, 1994), Doc. IMM-671-94 (Fed. T.D.), expressed the point in this way (at para. 17):

Although the Board is entitled to consider and weigh the evidence, it cannot ignore evidence. The respondent submits that this Court should not interfere with the Refugee Division’s weighting [sic] of the evidence. I agree. However, there is no question that this Court should interfere when the Board fails to consider evidence that directly and explicitly contradicts its findings. Not to consider the totality of evidence is an error of law.

The appellant argues that the Board committed an error in law in ignoring cogent and relevant evidence bearing directly on one of its principal arguments before the Board, namely, the impact of the tenured rights under sec. 5(2) of The Condominium Act on value. See, for example, Fredant Investments Ltd. v. Winnipeg (City) Assessor October 15, 1997, Al 97-30- 03385 [reported (1997), 118 Man. R. (2d) 307 (Man. C.A. [In Chambers]). In addition, the Board committed another error, counsel say, when it stated, in the passage just quoted from its reasons, “This would require an appeal of the assessment for a particular unit,” since in fact the assessment with respect to each individual unit was properly before the Board.

In an intriguing argument counsel for the Assessor asserted that in order to determine whether the evidence that the Board admittedly neglected to consider was of significance to the ultimate decision (that is to say, relevant), see Potter v. Korn (1996), 134 D.L.R. (4th) 437 (B.C. S.C. [In Chambers]) and Walde v. Great Basins Petroleum Ltd. (1985), 41 Alta. L.R. (2d) 193 (Alta. C.A.), it would be necessary for this Court to reassess and reweigh the other evidence before the Board. Despite the obvious factual error, a question of law alone therefore cannot readily be identified without involving this Court in the very process that ordinarily would result in the dismissal of a leave application. Furthermore, this Court has consistently held that matters of methodology and fact concerning value are for the Board and not subject to judicial review. See Winnipeg City Assessor v. Grant Park Ventures Inc. (January 9, 1990), Doc. 229/89 (Man. C.A.) and Manitoba (Provincial Municipal Assessor) v. Pineview Enterprises Ltd. (1995), 100 Man. R. (2d) 37 (Man. C.A.). While acknowledging that the appropriate standard of review from decisions of the Board is ordinarily that of correctness, see Winnipeg (City) Assessor v. RBE Holdings (January 20, 1998), Doc. Al 96-30-03048 (Man. C.A.), the Assessor notes that this onerous standard only applies to errors of law and does not apply to questions of fact or mixed fact and law.

Lastly, she argues, there was evidence before the Board concerning the efforts made by the appellant to market and sell the properties. Therefore, the evidence that was overlooked by the Board would not necessarily have had an impact on its decision since the Board could easily have concluded that it had little additional probative value.

I do not accept the Assessor’s position. I do not agree that the evidence ignored by the Board is of such little potential impact that it would not likely have been “relevant” to the Board’s consideration of value. Nor do I agree that to determine the potential “relevance” of the evidence requires me, at this stage, to assess the cogency of the evidence in question by comparing it to the evidence already before the Board.

I find support for my conclusion in the very words of the Board in justifying its rejection of the appellant’s argument with respect to sec. 5(2) of The Condominium Act “The Board finds that there was insufficient evidence to justify a reduction in assessed value for any unit” (emphasis added). Presumably, if there had been “sufficient evidence” the Board might have come to a different conclusion.

While there were two other grounds of appeal argued, namely, the Board’s alleged failure to apply the “equality provisions” of sec. 60(2) of the Act and its consideration of sec. 8(11) of The Condominium Act, I am not satisfied that a point of law alone has been raised with respect to either issue.

The Board made a mistake. It overlooked precise and uncontradicted evidence as to the actual impact of the “tenured rights,” granted by sec. 5(2) of The Condominium Act. This was central to the appellant’s case.

Leave to appeal will therefore be granted on the question whether the Board erred in law in failing to consider all of the evidence tendered before it by the appellant respecting the impact of sec. 5(2) of The Condominium Act upon the value of the individual condominium units.

The appellant shall have its costs of the application.

Leave to appeal granted.