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Municipal Law - MUNICIPAL BOARDS AND TRIBUNALS - Jurisdiction - Finances - Tax assessment

Thursday, November 17, 2016 @ 7:00 PM  

Appeal by the City of Edmonton from a judgment of the Alberta Court of Appeal which set aside a decision of the Assessment Review Board for the City of Edmonton (Board). For the 2011 taxation year, the City of Edmonton assessed the value of the Capilano Shopping Centre as approximately $31 million. The company that owned the shopping centre, Edmonton East (Capilano) shopping Centres Limited (Capilano), disputed this assessment by filing a complaint with the Board. It sought a reduction in the assessed value to approximately $22 million. When reviewing Capilano’s submissions and evidence, the City discovered what it determined was an error in its original assessment. The City therefore requested that the Board increase the assessed value to approximately $45 million. While Capilano expressed concern about the City’s change in position, it did not dispute the Board’s power to increase the assessment. The Board ultimately increased the assessment to approximately $41 million. Capilano appealed, submitting that when a taxpayer disputed an assessment the Board lacked the statutory power to increase the assessment and could only lower or confirm it. The Alberta Court of Queen’s Bench agreed with Capilano, as did the Court of Appeal. The Court of Appeal 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. On appeal, the Court had to determine the appropriate standard of review for the Board’s implicit decision that it could increase Capilano’s property assessment and whether the Board’s decision withstood scrutiny on that standard.

HELD: Appeal allowed. Whether the Board had the power to increase the assessment turned on the interpretation of s. 467(1) of the Municipal Government Act (MGA), the Board’s home statute. Applying the Dunsmuir framework, the standard of review was presumed to be reasonableness and the presumption of reasonableness had not been rebutted. Recognizing issues arising on statutory appeals as a new category to which the correctness standard applied would go against strong jurisprudence from the Court. The City gave Capilano 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. Capilano filed a lengthy response to the City’s submissions and evidence. In response to a question from the Board, Capilano clarified that it was not disputing the Board’s power to increase the assessment in this case. Therefore, it was hardly surprising the Board did not explain why it was of the view that it could increase the assessment, as Capilano had expressly conceded the point. The Board proceeded on the basis that s. 467(1) allowed it to increase the assessment at the City’s request and this was a reasonable interpretation of the legislation. The Board’s view that s. 467(1) allowed it to increase an assessment was consistent with the scheme of the MGA. The Board’s interpretation was also consistent with the ordinary meaning of “change” and the overarching policy goal of the MGA, to ensure assessments were 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. The Board’s decision was reasonable. Accordingly, the decision of the appeal court was set aside and Board’s decision was reinstated.