Globexx Properties Ltd. v. Edmonton (City), 2011 ABQB 464

Source: Court of King's Bench of Alberta

Date: 2011-08-03

Jurisdiction: Alberta

Docket: 1003 20592

Citation: 2011 ABQB 464

Opinion

Court of Queen ’ s Bench of Alberta Citation: Globexx Properties Ltd. v. Edmonton (City), 2011 ABQB 464 Date: 20110803 Docket: 1003 20592 Registry: Edmonton Between: Globexx Properties Ltd. Applicant - and - The City of Edmonton Respondent _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice D.L.

Shelley _______________________________________________________ Application for Leave to Appeal Introduction [ 1 ] This is an application for Leave to Appeal the October 27, 2010 Decision (the Decision) of the Composite Assessment Review Board (CARB), brought under s. 470 of the Municipal Government Act , RSA 2000, c. M-26 (MGA) and associated Regulations. On January 1, 2010, a new assessment complaint and appeal process was implemented through amendments to the MGA.

Under s. 470 of the previous legislative scheme, an appeal was made to the Municipal Government Board (MGB), which was then subject to judicial review. The new procedure before this Court is still developing and there is little case law dealing with the new appeal process.

The Legislation [ 2 ] The relevant provisions of the MGA , both before and after the amendments, are attached to these reasons as Appendices A and B. Facts [ 3 ] Globexx Properties Ltd. (Globexx) owns lands at 18150 - 111 Avenue NW, Edmonton, Alberta (the Property). [ 4 ] The 2009 Annual Realty Assessment (2009 NOA) for the Property was determined by the City of Edmonton to be $2,616,500.00. On October 14, 2009, Globexx appealed the 2009 NOA value to the Assessment Review Board, which upheld the City’s assessment.

Globexx then appealed to the MGB, which reduced the 2009 NOA value to $2,057,000.00 on March 29, 2010 (the MGB Decision). [ 5 ] In January 2010, before the MGB Decision was issued, the City: (

a) indicated, on the 2010 notice of assessment, a 2009 property assessment value of $2,616,500.00; and (

b) assessed the 2010 value of the Property at $2,323,000.00. [ 6 ] Globexx filed a complaint to the CARB regarding the 2010 assessed value. On October 26, 2010, the CARB conducted a hearing on the 2010 assessment. On October 27, 2010, the CARB issued the Decision, which dismissed Globexx’s complaint and upheld the 2010 assessed value. [ 7 ] Globexx was represented at the CARB hearing by a student-at-law. The student-at-law later swore an affidavit (the Affidavit) in support of this application for leave to appeal the CARB decision.

Preliminary Issues [ 8 ] The City objects to the admission of the Affidavit and the inclusion of materials in Globexx’s Brief asserted to have been before the CARB. [ 9 ] The Affidavit contains six paragraphs, that can be summarized as follows: 1. The deponent appeared at the CARB hearing on behalf of Globexx, 2. She identifies the documents exchanged between the parties before the CARB hearing as the Disclosure by the Complainant , Disclosure by the Respondent , and Rebuttal of the Complainant ;

3. She asserts that the CARB erred on a number of grounds, including that: it failed to consider that the 2010 assessment relied on the incorrect 2009 assessment; it failed to consider that the City’s submissions indicated that the 2010 assessed value was a decrease from the 2009 assessed value when it was actually an increase; it failed to consider what the MGB found to be comparable properties; and instead it considered properties that were not comparable; and 4.

She set out a table of the comparable properties as determined by the MGB, their 2009 and 2010 assessed values, and the variation in value between 2009 and 2010. [ 10 ] Globexx’s Brief of Law in this application contained numerous tabs, including the Disclosure by the Complainant , the Disclosure by the Respondent , the Rebuttal of the Complainant , the Decision, the decision in Maguire v. The City of Edmonton (October 31, 2007, ARB), and the 2009 ARB decision.

The Disclosure by the Complainant contained, among other things, the MGB Decision. [ 11 ] The Alberta Court of Appeal, under s. 688 of the MGA , hears applications for leave to appeal on matters related to planning and development, inter-municipal disputes, and decisions of the subdivision and development appeal board. The language of that

section is very similar to the language of s. 470 . The Court of Appeal practice guide may therefore be helpful in setting out a procedure for the new assessment appeal under s. 470 and in addressing the question of whether the Affidavit and the materials in the Tabs in Globexx’s written brief should be considered in this application.

I note, however, that s. 470(7) expressly indicates that “the appeal must proceed in accordance with the practice and procedure of the Court of Queen’s Bench”, and therefore I refer to the Court of Appeal’s practice directions for guidance only. [ 12 ] The Court of Appeal’s Consolidated Practice Directions (CPD) - Part F.1(a), dealing with motions practice including leave to appeal applications, provides that: (

a) The Court of Appeal directs that a party filing a notice of motion returnable before a panel of the Court must file an affidavit ( if applicable ) and a memorandum. (Emphasis added) [ 13 ] Part F.3 (

c) deals with notices of motion and supporting documentation and states: (

c) Where a party will be relying on material which has been previously filed, the materials must be contained in or attached to the notice of motion, affidavit, memorandum, or a separate covering letter ... [ 14 ] And under Part F.4(

b) the CPD directs that, on a leave to appeal application: (

b) A party may pick their own format, but should put in the memorandum whatever they consider useful to make the motion intelligible . Those contents would vary from case to case. The Court suggests that the party should ordinarily include the following in this order: (

i) the relief sought, (ii) a succinct statement of the facts relevant to that relief, including dates of any relevant steps in the proceedings ... , (iii) the precise statute sections and subsections, subrule numbers, or principles under which the application is made, and (iv) the grounds upon which the relief sought should be granted. (Emphasis added)

[ 15 ] Of these, the most relevant and helpful is Part F.4(

b) defining the contents of a memorandum in leave to appeal applications. The Affidavit [ 16 ] Globexx did not address this issue in its written brief. In oral response to the City’s argument that the Affidavit should not be considered, Globexx indicated its intention was to file an affidavit in support of the Originating Application - Notice of Appeal, the traditional procedure for filing proceedings in this type of matter (see Alberta Rules of Court , R. 3.8(1) and (2) and 13.14).

Further, Globexx submitted that, given that a new assessment complaint and appeal process is involved in this case, some latitude should be given to technical irregularities and that, if the conclusions drawn in the Affidavit should not have been included, they should be struck or not considered by me. [ 17 ] The City argues that the Affidavit deposes to legal argument and specific facts. It sets out, for instance, a list of grounds for appeal, argues that the CARB failed to take certain points into consideration and lists properties that it argues are comparable.

The City asserts that this Affidavit evidence was not before the CARB and therefore should not be considered. It argues that Globexx is attempting to present its case in a new way and format based on a partial record; this, it argues, is inconsistent with s. 470.1(1) (

a) of the MGA , is procedurally unfair and is contrary to previous case law: Ruppert v. Calgary Assessment Review Board , (18 November 2010), Calgary 1001-11405 (Alta. QB); Maduke v. Leduc (County No. 25) , 2010 ABCA 331 at para. 16 . [ 18 ] The City cites the statements of Poelman, J. in Ruppert (at p.7, ll. 15-21): The voluminous affidavit of Mr. Ruppert is not a substitute for the record. I accept his submission that when the copied exhibits show receipt by the Board, they were part of the materials the Board had before it when making the decisions. However, Mr.

Ruppert does not suggest that the exhibits are a complete record of the documents before the Board, and there is no evidence of the testimony and submissions heard during the two-day hearing - apart from what might be gleaned from the narrative in Mr.

Ruppert’s affidavit, which is not the type of reliable evidence we would normally expect in a record. [ 19 ] The City argues that, since Globexx is not advancing a procedural fairness argument, there is no basis to support the admission of additional affidavit evidence in this application beyond the evidence that was submitted to the CARB. [ 20 ] In respect of the Affidavit, s. 470.1(1)(

a) of the MGA provides: On the hearing of an appeal, (

a) no evidence other than the evidence that was submitted to the assessment review board may be admitted ... [ 21 ] While this

section discusses what should be done on an appeal, it is also relevant here since the leave application is connected to the appeal. [ 22 ] Filing an affidavit in an application for leave to appeal is not restricted to situations where procedural fairness arguments are being advanced by an applicant. For instance, the Alberta Court of Appeal’s CPD, Part F.1(

a) permits it where it is applicable. Further, R. 3.14 of the Alberta Rules of Court provides that when making a decision about an originating application, the Court may consider affidavit evidence. As well, the Court of Appeal permitted affidavit evidence when dealing with a preliminary objection that an application for leave to appeal was not made in time: Bowen v. Edmonton (City) Council , [1976] WWD 161 (Alta SC, AD). [ 23 ] The Affidavit was not before the CARB. This raises the issue of whether the evidence that was deposed to in the Affidavit was before the CARB, even if the Affidavit itself was not.

In other words, what part of the Affidavit constitutes evidence, as opposed to inappropriate argument, and is such evidence new evidence?

[ 24 ] In order to determine whether the Affidavit contains “new evidence” prohibited under s. 470.1(1)(a), it is necessary to compare the Affidavit evidence with the evidence that was before the CARB. In Maduke , an appeal decision, not an application for leave to appeal, the appellants sought to adduce additional material that was not part of the record before the relevant Board.

A full appeal generally only proceeds with the record and/or transcript of the tribunal below, and therefore in Maduke the Court was able to compare the additional material the appellants sought to adduce with the record. [ 25 ] In this application, there is no record of the CARB before me to compare to the Affidavit. A possible practical alternative to the record in this circumstance might have been a statement or counter-affidavit from the City indicating that the Affidavit contains “new evidence” and setting out what that new evidence is.

I have no such evidence before me. [1] [ 26 ] The City indicated that it would be acceptable for me to consider the Affidavit solely to the extent that it outlines Globexx’s grounds (that the CARB ignored evidence and that it improperly applied and relied upon Maguire ). [ 27 ] Because I cannot determine whether the Affidavit contains new evidence, I will consider only the paragraphs of the Affidavit which articulate the grounds of appeal, which, in any event have also been set out in both Globexx’s written and oral submissions.

I will disregard the paragraph that deals with the evidence before the CARB, which the City disputes on the basis that it is either “new” or that it was not submitted to the CARB. Those evidentiary issues will have to be argued at an appeal hearing, if leave is granted, once the entire record is before the Court. In the result, paragraph 5 of the Affidavit (setting out comparable assessed values) will not be considered in this application.

The partial record [ 28 ] The City argues that Globexx’s brief contains a partial record which consists of the parties’ disclosure for the CARB hearing conducted on October 26, 2010. It argues that it is unclear whether Globexx’s Tab 9 (CARB Notice of Decision dated October 14, 2009) and Tab 10 (Annual Realty Assessment Notice for 2009) were before the CARB.

The City submits that the partial record should not be considered because it does not include testimony, cross examination or questions from the CARB, and because it is impossible to tell which of the materials attached to Globexx’s brief were before the CARB in the absence of the CARB’s record.

Materials that were not before the CARB should not form part of this application (or the appeal): Ruppert and Maduke . [ 29 ] In response to the City’s argument that it is impossible to tell which of the materials attached to Globexx’s brief were before the CARB, Globexx notes that both the Affidavit and the Decision confirm that the materials were part of the disclosure before the CARB.

Globexx also contends that the City had the ability to put before this Court whatever materials it chose to address this concern. [ 30 ] Section 470(4) of the MGA gives an applicant for leave to appeal the discretion whether to request “materials” from CARB for the purposes of the application; apparently a respondent does not have the same opportunity.

I note that, based on the different wording between s. 470(4) and (9), s. 470(4) appears to contemplate that an applicant may request production of a portion of the record for the leave application, rather than the whole record which is required to be produced under s. 470(9).

Section 470(4) refers to “the materials requested”, while s. 470(9) requires the assessment review board to forward to the clerk of the Court “the transcript, if any, and the record of the hearing, its findings and reasons for the decision.” I conclude that if an applicant believes the CARB decision or other materials are necessary to enable it demonstrate intelligibly that the test for leave to appeal is met, it may make a request for some portion of the record, and may then include those materials received from the Board in its submissions. [ 31 ] In my view, this is the preferable choice, rather than to resort to affidavits and opposing affidavits to establish what was before the CARB.

However, I agree with Globexx that this is a relatively new procedure and technical irregularities should not interfere with the leave application, if it otherwise meets the established legal tests. [ 32 ] The City does not assert that the CARB Notice of Decision dated October 14, 2009 and the Annual Realty Assessment Notice for 2009 were not before the CARB, and it could have deposed to this factual issue.

More importantly, the Decision itself confirms that the CARB was aware of the MGB decision to reduce the 2009 assessment from $2,616,500.00 to $2,057,500.00. [ 33 ] There is no requirement in the MGA for Globexx, on an application for leave to appeal, to request materials or records from the CARB, and the appellate court need not have the CARB records before it during an application for leave to appeal. However, as I

have noted, an applicant may request the materials it considers necessary. [34] I conclude that this Court is not precluded from considering the materials produced by Globexx in this application,characterized by the City as a “partial record”. Admittedly the selected materials are not a substitute for the full record. Nevertheless, as Ihave indicated earlier, when an applicant is filing an application for leave to appeal a decision of the CARB, it need only include in itsbrief those materials that are practically useful and legally permissible to make the application intelligible to the judge.

Barring unusualcircumstances, I do not see any useful purpose in including materials (which in some cases could be quite voluminous) which do notrelate to the issues being raised by an applicant in the leave to appeal application.

To the contrary, at the leave to appeal stage it seemsfar more appropriate to focus the materials on the issues and evidence which go to the question of law or jurisdiction alleged, to theimportance of those alleged questions of law or jurisdiction so as to merit an appeal hearing, and to show that the appeal has a reasonablechance of success if leave is granted. [35] Globexx did not request the “materials” from the CARB, but for the purposes of this application, and in the absence of anyevidence that the material was not before the CARB, I will allow the inclusion in its written brief of the materials it consideredpractically useful and permissible to make the application intelligible to me.

Issues [36] In an application for leave to appeal the Court must determine whether the applicant has met the statutory requirements. Therequirements here are: 1. The issue raised is a question of law or jurisdiction; 2. The appeal involves a question of sufficient importance to merit an appeal; and 3. The appeal has a reasonable chance of success. [37] Globexx’s written brief articulated the questions of law it asserts are involved in its application, and in oral argument furtherexpanded on these issues. These issues can be summarized as: 1.

The CARB failed to consider, or properly consider, evidence before it, and instead relied upon incorrect, erroneous andmisleading evidence; 2. The CARB erred by relying in an unpublished and internal decision (Maguire); 3. The CARB failed to consider that the assessed value for 2010 was determined when it was assumed that the 2009 assessed valuewas $2,616,500.00, when the 2009 assessed value was later determined to be $2,057,000.00; and 4.

The CARB did not consider the assessed value of comparable properties submitted by Globexx and failed to consider that theassessed value of such comparable properties decreased between 2009 and 2010. [38] Applicants for leave to appeal should identify in their written briefs the precise question(

s) of law or jurisdiction that are ofsufficient importance to merit an appeal. The Court will only grant leave to appeal if it finds that there is a reasonably arguable point oflaw or jurisdiction which could affect the result: Rendle v. Edmonton (City) Development Appeal Board, 1995 ABCA 499 ,[1995] AJ No 1169 at para. 2 (CA); Mocyk v. East Peace No. 131 (Municipal District) (1995), 1995 ABCA 378 , 35 Alta. L.R.(3d) 255 at para. 6, 32 M.P.L.R. (2d) 77(CA).

[39] I must determine whether the above four issues constitute questions of law, whether they are of sufficient importance to meritan appeal, and whether such an appeal has a reasonable chance of success. Parties’ Positions Globexx [40] Globexx submitted, in its brief, that this application involves a question of law of sufficient importance to merit an appealbecause: ... the 2010 Annual Realty Assessment Notice sets forth the Respondent’s conclusion that the assessed value of The Lands (i.e.

GlobexxProperty) decreased from the 2009 assessed value; a conclusion consistent with every comparable property submitted by Globexx andpreviously adopted by the MGB and CARB. It is thus a fact that the value of Globexx’s property, employing the Mass Appraisalapproach adopted by the Respondent, MUST have also decreased in value in the same manner as the comparable properties and the pre-MGB decision valuation by the Respondent of The Lands.

The problem, and the resulting unfairness to Globexx, is simply that theRespondent assessed the property without the knowledge that the 2009 assessed value was $559,500.00 less than they believed to be thecase ... [41] The above portion of Globexx’s brief does not constitute a clear question of law. However, during oral argument Globexx’slegal counsel clarified the issue or question of law intended. He submitted that the mass appraisal method requires that the valuationmodels developed for its purpose “must represent supply and demand patterns for groups of properties rather than a single property”.

Apattern is a trend or a similarity. Thus, it is essential for an effective mass appraisal to ascertain the correct previous value of properties. [42] In this case, we have the properties relied upon by the City as comparables for the 2009 assessment. So if the evidenceindicates that property values of similar properties decreased, then the Property should follow the pattern of the comparables anddecrease in value as well.

Globexx submits that it is wrong for the City to fail to recognize that the value of the Property will decrease ina pattern consistent with other comparable properties. [43] Admittedly assessment is done for each year. However that does not obviate the requirement that the trend of the value ofsimilar properties in the same neighbourhood must follow a similar decreasing or increasing pattern.

Globexx submits that it is a questionof law when mass appraisal is wrongly applied or employed and when the City puts wrong information before the CARB on theassessed value of a similar property. [44] Globexx submits that the importance of this application and subsequent appeal is that there is a need to clarify for the Citythat, when employing the mass appraisal method in future, the valuation models developed for the mass appraisal purpose mustrepresent a pattern for groups of properties and that the mass appraisal technique must be applied to the correct values.

Globexx submitsthat ultimately the result of this appeal, if leave is granted, would have jurisprudential value and be beneficial to future appellants. [45] Globexx noted that the last statement of the CARB in the Decision that it “could not draw any conclusion to reduce the valuefor this year’s assessment based on the previous year’s assessment value” is an error of law. Further, it referred to Canada (Director ofInvestigation and Research) v.

Southam Inc., (SCC), [1997] 1 SCR 748 at paras. 39-41, 144 DLR (4th) andemphasised that: ... if a decision-maker says that the correct test requires him or her to consider A, B, C, and D, but in fact the decision-maker considersonly A, B, and C, then the outcome is as if he or she had applied a law that required consideration of only A, B, and C. If the correct test

requires him or her to consider D as well, then the decision-maker has in effect applied the wrong law, and so has made an error of law. ... If the 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. [ 46 ] Globexx concluded that:

a) firstly, it is incomprehensible why the CARB would not comment on all the comparables from both Globexx and the City in order to identify the pattern that the mass appraisal method requires in this instance; and

b) secondly, that it is an error of law for the CARB to say in its decision that it “could not draw any conclusion to reduce the value for this year’s assessment based on the previous year’s assessment value.” [ 47 ] Globexx further argued that the CARB erred in law in relying on the decision in Maguire for two reasons: 1. It was an unpublished decision and only a portion of the decision was disclosed to Globexx; and 2. Maguire was distinguishable from the facts at issue here; in particular, in Maguire the complainant did not present any comparables to support a reduction in the assessment.

The City [ 48 ] The City argues that the Court may only grant leave to appeal if the three part test set out under the MGA, s. 470(5) is met by Globexx, namely: (

i) does the appeal involve a question of law or jurisdiction?; (ii) is the question of sufficient importance to merit an appeal?; and, (iii) does the appeal have a reasonable chance of success? The City submitted that the test is not met in this application. [ 49 ] According to the City, Globexx’s five grounds of appeal could be grouped into two grounds, which are that the CARB erred in law: (

i) by failing to consider, or properly consider, evidence before it and instead relied on incorrect evidence; and (ii) by relying on the Maguire case. These are not, the City submitted, questions of law as set out in Southam at para. 35. [ 50 ] In relation to the first appeal ground dealing with evidence, it is the City’s contention that what Globexx argues is that the CARB erred by placing more weight on the City’s evidence than Globexx’s evidence. The City argued that Globexx has neither demonstrated that the CARB ignored evidence nor shown that the CARB ignored evidence that the law required it to consider.

This ground does not amount to error of law. [ 51 ] The City stated that, regarding the second ground of appeal, the excerpt from the Maguire case which the CARB relied on was properly disclosed to Globexx in a legal brief before the October 26, 2010 hearing, that Globexx did not request a full copy of the case, did not object to the City’s disclosure, and did not object to reliance on the case. The City submitted that relying on a case that was properly disclosed is not an error of law.

Further, that the principle extracted from the Maguire case by the CARB is one that arises from and is required by the MGA and its regulations, not from the facts in that case. It submits that reliance on a principle confirmed by the MGA and the Matters Relating to Assessment and Taxation Regulation , Alta. Reg. 220/2004 (MRAT) is not an error of law. [ 52 ] The City submitted that Globexx’s grounds of appeal are questions of fact and “at most questions of mixed fact and law” and therefore fail the first part of the test for leave to appeal.

[ 53 ] The City argued that this application fails the second part of the test for leave because the arguments of Globexx are particular to the Property and are fact specific. It submitted that the application does not have precedential value and Globexx has not demonstrated that the application is of sufficient importance to merit an appeal. The City argues that our Court of Appeal has indicated that an issue may be of sufficient importance to merit an appeal “if it is important for jurisprudential purposes”: Omega2 Corporation v. Edmonton (City of) , 2005 ABCA 449 at para. 9 .

The Court has also held that sufficient importance must be determined on an objective scale and not on the basis of the subjective importance of the matter to the applicant: 845971 Alberta Ltd v. Grande Prairie (Subdivision and Development Appeal Board) , 2010 ABCA 135 at para. 8 . [ 54 ] Under the third part of the test, the City contended that the appeal has no reasonable chance of success.

While it recognized that the determination of the applicable standard of review will impact the appeal’s chance of success ( 845971 Alberta Ltd .), it argued that, whether the standard of review is reasonableness or correctness, this appeal cannot reasonably succeed. On a reasonableness standard, the CARB was acting within its expertise.

In the alternative, on a correctness standard, the Decision and the governing legislation demonstrate that the grounds have no reasonable chance of success. [ 55 ] The City further submitted that the Decision states that the 2009 assessment of the Globexx Property was reduced on appeal to $2,057,000.00; and that there is no requirement in the MGA that past year’s assessment amount be printed on the current year’s assessment.

The CARB acknowledged and considered Globexx’s argument that the assessed value of the Property decreased in 2010 from the 2009 pre-MGB Decision assessed value by 11.21% , when in fact, taking into account the MGB revised assessed value, it increased by 12.93%. It however noted that the relevant legislation and case law require that each assessment year is independent: MGA, ss. 285 and 289(2) (1); MRAT , ss. 2, 3 , 4(1) , 5(1) and 6(1) ; and Ruppert at p. 12, line 36 - p.13, line 1. [ 56 ] It is the legislation that informed the CARB’s determination of the Property’s market value and not percentage changes.

The City also argues that the CARB considered the comparability of the properties in its reasons and, based on all evidence before it, found that the City’s comparables were the most appropriate. The CARB considered the MGB comparables and Globexx’s argument on it as shown in the Decision; notwithstanding that the CARB is not required to follow the decision of the MGB as each assessment year is based on a different valuation date (July 1, 2008 for the 2009 Assessment and July 1, 2009 for 2010 Assessment).

It further argued that the CARB considered Globexx’s argument that the MGB comparables had all experienced a decrease in their assessed value; and evaluated that against the legislative requirement that each assessment year is independent. [ 57 ] In respect of the first ground of appeal, the City submitted that the points in the preceding paragraph are not errors of law with a reasonable chance of success and that the CARB considered the evidence before it, applied a principle in accordance with the legislation and made its decision.

Regarding the Maguire case as a second ground of appeal, the City reiterated its earlier argument (see para. 42 above) and submitted that, based on that reasoning, the second ground is not an error of law with a reasonable chance of success. Thus, it concluded that the third part of the test for leave to appeal is not satisfied in this application. Analysis [ 58 ] It is clear that the CARB was aware that the MGB had reduced the 2009 assessment.

It also appears that it was aware that the properties put forward by the City as comparable to the Property in 2009, and which had been before the MGB and accepted by it as comparable at the appeal, had all decreased in value for the 2010 assessment year. The Property, however, increased almost 13%. However, the CARB accepted new comparables submitted by the City in support of its 2010 assessment of the Property. The effect of doing so was to ignore the effect of the successful 2009 appeal.

I consider that the ability (or not) of a municipality and a CARB to ignore a successful appeal (the effect of which was to direct the City to place a revised assessment on the Property which would then become the starting point for the 2010 assessment) is a question of law. [ 59 ] I am also not convinced by the City’s argument that, because there is a new assessment each year, the City is entitled to disregard the effect of a successful appeal of the previous year’s assessment. To the contrary, this is a mass appraisal system which is legislated under the MGA .

Each property is not individually assessed each year. In a mass appraisal system the City starts with the previous year’s assessment as its base and then applies various factors (derived from its analysis of market data collected over the intervening year) as appropriate to particular properties. [ 60 ] It is an underlying and overriding principle of assessment law that similar properties be treated equitably. Since all of the

comparables that the City argued were similar to the subject in 2009 experienced a reduction in the neighbourhood of 11%, the only explanation for the increase in the subject’s assessment in 2010 was that, as suggested by Globexx, the City applied the factors to the wrong starting point.

I am satisfied that a failure to properly apply a legislated regime, mass appraisal (in this case by starting with an incorrect value when applying the factors used to reassess a property in a subsequent year) constitutes a question of law. [ 61 ] I am further satisfied that both of these questions are of sufficient importance and have precedential value for future cases. I am satisfied that they have a reasonable chance of success. [ 62 ] In regards to the Maguire case, no issue of law is raised merely because the entire decision was not disclosed.

Globexx was aware that the City would be relying on the decision, and could have asked for the full decision. [ 63 ] In my view, however, the CARB’s reliance on Maguire does raise an issue of law. In Southam, the Supreme Court of Canada defined an issue of law as questions about what the correct legal test is (para. 35). The CARB held that Maguire decision set out the test for whether the previous year’s assessment was relevant, noting that it held that “each assessment is independent of the previous years’ assessment”.

However, the Maguire decision found that the complainant had not met its evidentiary onus, and it was within that context that the assessment review board made its comments regarding the previous year’s assessment. In keeping with my earlier analysis of the appropriate test in a mass appraisal system, this raises a question of law. Conclusion s [ 64 ] This leave application has two aspects. The first is related to procedural issues that arise because of the amendments to the MGA .

I have rejected the City’s position that it was necessary for the applicant to provide the entire record for the purposes of this leave application. What is required to satisfy the onus on an applicant in a leave application will be determined by the nature of the grounds of appeal and the specifics of each case.

Furthermore, such a requirement is at odds with the legislation, which does not require the entire record until after leave is granted and the matter proceeds to an appeal hearing. [ 65 ] While it will always be necessary to review some of the record in relation to a leave application, the extent of such review will vary. The applicant must put before the Court only that which is necessary to meet the burden of proving that there is an arguable question of law with a reasonable chance of success. Sometimes that burden may be satisfied solely by a review of the decision which is under appeal.

In other cases it may be necessary to review significant portions of the record to meet this burden. Rather than relying on affidavits deposed by lawyers who appeared at the assessment review board, the better approach is to seek the materials relevant to the leave application from the board under s. 470(4). [ 66 ] Moreover, it must be remembered that this is a two stage process. The leave application is not the hearing of the appeal. A review to the extent suggested by the City in this particular case will amount to a hearing of the appeal on its merits.

Doing so would be inefficient and duplicative. [ 67 ] The second aspect of this application relates to the specifics of the issues raised by the facts of this case. The issues raised by Globexx relate to the requirements of municipalities and CARBs to follow the directions of appellate bodies, as well as the application of a legislated assessment regime.

Both are questions of law, the determination of which may be of significant precedential value. [ 68 ] Having been satisfied that the issues raised by Globexx are questions of law of sufficient importance to merit an appeal and that such appeal has a reasonable chance of success, I hereby grant leave to Globexx to appeal the decision. Heard on the 14 th day of April, 2011. Dated at the City of Edmonton, Alberta this 3 rd day of August, 2011.

D.L. Shelley J.C.Q.B.A. Appearances: George H. Akers Chelsea Tkachuk (Student-at-Law) Nicholl & Akers Solicitors for the Applicant, Globexx properties Ltd. Rebecca Ratti Law Branch City of Edmonton Solicitor for the Respondent, the City of Edmonton Kate L. Hurlburt Darin S. McKinley Emery Jamieson LLP Solicitors for the Assessment Review Board Appendix A Municipal Government Act , RSA 2000, c M-26 (as of December 31, 2009) 470

(1) The decision of an assessment review board may be appealed to the Municipal Government Board.

(2) Any of the following may appeal the decision of an assessment review board: (

a) an assessed person; (

b) a taxpayer; (

c) an assessor; (

d) a municipality, if the decision being appealed relates to property that is within the boundaries of that municipality. 471

(1) If there has been substantial compliance with this Part, the decision of an assessment review board is not invalid because of a defect in form, a technical irregularity or informality.

(2) An assessment review board may correct any error or omission in its decision. 499

(1) On concluding a hearing, the Board may make any of the following decisions: (

a) dismiss a complaint or an appeal that was not made within the proper time; (

b) make a change with respect to any matter referred to in section 492(1), if the hearing relates to a complaint about an assessment for linear property; (

c) make a change to any equalized assessment, if the hearing relates to an equalized assessment; (

d) make any decision that the assessment review board could have made, if the hearing relates to the decision of an assessment review board; (

e) decide that no change to an equalized assessment or an assessment or tax roll is required.

(2) The Board must not alter (

a) any assessment that is fair and equitable, taking into consideration assessments of similar property in the same municipality, and (

b) any equalized assessment that is fair and equitable, taking into consideration equalized assessments in similar municipalities.

(3) The Board may, in its decision,

(

a) include terms and conditions, and (

b) make the decision effective on a future date or for a limited time. 506 There is no appeal from a decision of the Board. 688

(1) Despite

section 506, an appeal lies to the Court of Appeal on a question of law or jurisdiction with respect to (

a) a decision of the subdivision and development appeal board, and (

b) the Municipal Government Board on a decision on an appeal under

section 619 [planning and development], an intermunicipal dispute under Division 11 or a subdivision appeal under this Division.

(2) An application for leave to appeal must be filed and served within 30 days after the issue of the decision sought to be appealed, and notice of the application for leave to appeal must be given to (

a) the Municipal Government Board or the subdivision and development appeal board, as the case may be, and (

b) any other persons that the judge directs.

(2.1) If an applicant makes a written request for materials to the Municipal Government Board or the subdivision and development appeal board, as the case may be, for the purposes of the application for leave to appeal under subsection (2), the Municipal Government Board or the subdivision and development appeal board, as the case may be, must provide the materials requested within 14 days from the date on which the written request is served.

(2.2) An applicant shall not request under subsection (2.1) the transcript of the hearing, but the Court of Appeal may, on application or on its own motion, if satisfied that the transcript is necessary for the purpose of determining the application for leave to appeal, direct that the Municipal Government Board or the subdivision and development appeal board, as the case may be, provide the transcript within the time provided by the Court.

(3) On hearing the application and the representations of those persons who are, in the opinion of the judge, affected by the application, the judge may grant leave to appeal if the judge is of the opinion that the appeal involves a question of law of sufficient importance to merit a further appeal and has a reasonable chance of success.

(4) If a judge grants leave to appeal, the judge may (

a) direct which persons or other bodies must be named as respondents to the appeal, (

b) specify the questions of law or the questions of jurisdiction to be appealed, and (

c) make any order as to the costs of the application that the judge considers appropriate.

(4.1) On leave to appeal being granted by a judge of the Court of Appeal, the appeal must proceed in accordance with the practice and procedure of the Court of Appeal.

(4.2) The notice of appeal must be given to the parties affected by the appeal and to the Municipal Government Board or the subdivision and development appeal board, as the case may be.

(4.3) Within 30 days from the date that the leave to appeal is obtained, the Municipal Government Board or the subdivision and development appeal board, as the case may be, must forward to the Registrar of the Court of Appeal the transcript and record of the hearing, its findings and reasons for the decision.

(5) If an appeal is from a decision of a subdivision and development appeal board, the municipality must be given notice of the application for leave to appeal and the board and the municipality (

a) are respondents in the application and, if leave is granted, in the appeal, and (

b) are entitled to be represented by counsel at the application and, if leave is granted, at the appeal.

(6) If a decision of the Municipal Government Board is appealed, the Board (

a) is a respondent in the application and, if leave is granted, in the appeal, and (

b) is entitled to be represented by counsel at the application and, if leave is granted, at the appeal. Appendix B Municipal Government Act , RSA 2000, c M-26, effective Jan. 1, 2010 470

(1) An appeal lies to the Court of Queen’s Bench on a question of law or jurisdiction with respect to a decision of an assessment review board.

(2) Any of the following may appeal the decision of an assessment review board: (

a) the complainant; (

b) an assessed person, other than the complainant, who is affected by the decision; (

c) a municipality, if the decision being appealed relates to property that is within the boundaries of that municipality; (

d) the assessor for a municipality referred to in clause (c).

(3) An application for leave to appeal must be filed with the Court of Queen’s Bench within 30 days after the persons notified of the hearing receive the decision under

section 469, and notice of the application for leave to appeal must be given to

(

a) the assessment review board, and (

b) any other persons as the judge directs.

(4) If an applicant makes a written request for materials to the assessment review board for the purposes of the application for leave to appeal under subsection (3), the assessment review board must provide the materials requested within 14 days from the date on which the written request is served.

(5) On hearing the application and the representations of those persons who are, in the opinion of the judge, affected by the application, the judge may grant leave to appeal if the judge is of the opinion that the appeal involves a question of law or jurisdiction of sufficient importance to merit an appeal and has a reasonable chance of success.

(6) If a judge grants leave to appeal, the judge may (

a) direct which persons or other bodies must be named as respondents to the appeal, (

b) specify the question of law or the question of jurisdiction to be appealed, and (

c) make any order as to the costs of the application that the judge considers appropriate.

(7) On leave to appeal being granted by a judge, the appeal must proceed in accordance with the practice and procedure of the Court of Queen’s Bench.

(8) Notice of the appeal must be given to the parties affected by the appeal and to the assessment review board.

(9) Within 30 days from the date that the leave to appeal is obtained, the assessment review board must forward to the clerk of the Court of Queen’s Bench the transcript, if any, and the record of the hearing, its findings and reasons for the decision. RSA 2000 cM 26 s470; 2009 c29 s28 Decision on appeal 470.1

(1) On the hearing of an appeal, (

a) no evidence other than the evidence that was submitted to the assessment review board may be admitted, but the Court of Queen’s Bench may draw any inferences (

i) that are not inconsistent with the facts expressly found by the assessment review board, and (ii) that are necessary for determining the question of law or the question of jurisdiction,

and (

b) the Court may confirm or cancel the decision.

(2) In the event that the Court of Queen’s Bench cancels a decision, the Court must refer the matter back to the assessment review board, and the board must rehear the matter and deal with it in accordance with the opinion of or any direction given by the Court on the question of law or the question of jurisdiction.

(3) No member of the assessment review board is liable for costs by reason of or in respect of an application for leave to appeal or an appeal under this Act.

(4) If the Court of Queen’s Bench finds that the only ground for appeal established is a defect in form or a technical irregularity and that no substantial wrong or miscarriage of justice has occurred, the Court may deny the appeal, confirm the decision of the assessment review board despite the defect or irregularity, and order that the decision takes effect from the time and on the terms that the Court considers proper. 2009 c29 s28 471

(1) If there has been substantial compliance with this Part, the decision of an assessment review board is not invalid because of a defect in form, a technical irregularity or informality.

(2) An assessment review board may correct any error or omission in its decision. 688

(1) Despite

section 506 [ which now provides for an appeal of an MGB decision to the Court of Queen ’s Bench on issues of law or jurisdiction ], an appeal lies to the Court of Appeal on a question of law or jurisdiction with respect to (

a) a decision of the subdivision and development appeal board, and (

b) the Municipal Government Board on a decision on an appeal under

section 619, an intermunicipal dispute under Division 11 or a subdivision appeal under this Division.