Associated Developers Ltd. v. Edmonton (City), 2011 ABQB 592

Court of Queen ’ s Bench of Alberta Citation: Associated Developers Ltd. v. Edmonton (City), 2011 ABQB 592 Date: 20110928 Docket: 1003 20997 Registry: Edmonton Between: Associated Developers Ltd. as Represented by Altus Group Ltd. Applicant - and - The City of Edmonton and Edmonton Assessment Review Board Respondents _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.M.

Ross _______________________________________________________ [ 1 ] The Applicant, Associated Developers, represented by Altus Group Ltd., seeks leave to appeal, an appeal of, and judicial review of, the November 10, 2010 Decision of the Composite Assessment Review Board (CARB) assessing its property (the Property) as industrial property, not farmland. The leave to appeal and the appeal are brought under s. 470 of the Municipal Government Act , RSA 2000, c. M-26 (MGA) and associated Regulations. [ 2 ] A new assessment complaint and appeal process was implemented on January 1, 2010 through amendments to the MGA .

Under s. 470 of the previous legislative scheme, an appeal of a CARB decision was to the Municipal Government Board (MGB), which was then subject to judicial review (the relevant provisions of the MGA, both before and after the amendments are attached as Appendices A and B).

[ 3 ] The case raises a number of issues, including the pure procedural questions of how such applications under the new process should proceed. I will deal first with the procedural questions and then address the substantive issues. I. Appropriate Procedure A. Can (and should) the leave to appeal and appeal be heard at the same time? [ 4 ] In my opinion, it is preferable to hear the leave to appeal and the appeal separately. However, in the appropriate circumstances, they may be heard together. [ 5 ] I come to this conclusion based on an analysis of s. 470. The Chambers Judge may grant the leave application if: 1. The issue(

s) raised by the applicant 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. [ 6 ] The legislation draws an express distinction regarding the materials before the Court on a leave application and on the appeal.

Under s. 470(4) an applicant may ask the board for “materials ... for the purposes of the application for leave to appeal”, while s. 470(9) provides that within 30 days of leave to appeal being granted the board must “forward ... the transcript, if any, and the record of the hearing, its findings and reasons for the decision.” Thus, the record in a leave application will generally be less complete than the record forwarded under s. 470(9). [1] This makes sense as all that is necessary in the leave application is to establish that the board may have made an error of law or jurisdiction. [ 7 ] This legislative scheme implies that the legislative intention was that there be a two-stage process, one in which a partial record is provided, and then, if leave is granted, the production of the entire record. [ 8 ] I note that a respondent does not appear to have the same right under s. 470(4) to request materials for the leave application.

Thus if less than the full record is before the Court and the Respondent requires the full record to refute the Applicant’s arguments, that will likely form part of the appeal proper. [ 9 ] If the Chambers Judge grants leave to appeal, he or she may (under s. 470(6)) name who or what bodies must be named as respondents, specify the question of law or jurisdiction to be appealed, and award costs.

These first two options also speak to why the leave application and the appeal should be heard separately. [ 10 ] The appellant will (hopefully) frame what it perceives to be the appropriate questions of law or jurisdiction, but on review the Court may re-frame those questions. See for example Hopewell Development (Leduc) Inc. v. Alberta (Municipal Government Board), 2009 ABCA 391 and Northern Sunrise (County) v. De Meyer , 2008 ABCA 191 : decisions in which the Court of Appeal granted leave to appeal under s. 688 of the MGA and defined the questions of law to be addressed on the appeal.

If the Court re-frames the questions, it will likely be necessary for the parties to revise their written and oral submissions to address what the Court has defined as the issues. [ 11 ] Moreover, if the Court adds respondents who were not given notice of the leave application, they would require an

opportunity to make submissions. [ 12 ] On a practical note, it may be difficult to avoid the risk of conflating the issues in the leave application and the appeal. That is apparent from the Applicant’s brief: see for example page 7 : “Grounds for Leave to Appeal and Judicial Review in which the Applicant argues both the grounds for leave and the judicial review grounds ; p. 9 para. 33, which states that the Decision should be set aside (something which should be argued in the appeal); p. 18, para. 58, which is in the

section dealing with the merits of the appeal, but starts with: “The Applicant submits that leave should be granted”. [ 13 ] In the appropriate circumstances, and until the procedural requirements for this new legislative regime are settled, it may be possible to hear and decide both a leave application and appeal at the same time. As the applicant here argues there may be greater efficiency and time saving in doing so. [ 14 ] This is what Justice Germain did in Edmonton (City) v. Edmonton (City) Assessment Review Board, 2010 ABQB 634 , 37 Alta LR (5th) 301.

The City, on an emergency basis, sought an appeal and judicial review of the assessment review board’s (ARB) refusal to grant an adjournment. Justice Germain concluded that the issues at stake were questions of law: whether the ARB breached the principles of procedural fairness, and whether the ARB correctly interpreted the relevant regulations, that restricted the board’s ability to grant adjournments to “exceptional circumstances”. He concluded (at para. 27) that in that case the questions on judicial review, on the leave application, and on appeal were essentially the same.

The urgent nature of the application was also a unique circumstance. [ 15 ] In my view, the Court may choose to consider the leave and the appeal together in the following circumstances: 1. the entire record is before the Court [2] , 2. the applicant and respondent have appropriately stated, and responded to, the question of law (or jurisdiction) at issue, and 3. there is no need to add further respondents. [ 16 ] If these requirements are met, it may be appropriate to give a decision on both the leave and the appeal. B.

Can the leave application and the judicial review be heard at the same time? [ 17 ] There may be good reasons to combine the applications for leave to appeal and judicial review. Generally, the issues on a leave application and judicial review will be different.

The first must determine whether the issues raise a question of law or jurisdiction, whether the issue is “of sufficient importance”, and whether there is a likelihood of success. [ 18 ] Tactically, a party may decide to pursue judicial review in the alternative, in case the Court finds that the issues raised are not questions of law or jurisdiction, but questions of fact or mixed fact and law.

For example, in this case, many of the Applicant’s arguments on the merits of the appeal appear to raise questions of fact, not law (see Appellant’s Brief, paras. 58-64), and a judicial review argument may be that the CARB made an unreasonable finding of fact based on the evidence. Slatter J in Buckley v.

Entz Estate , 2007 ABCA 7 , 401 AR 231 noted that cautious applicants should apply for judicial review and appeal under the same Originating Notice. [ 19 ] I note, however, that the Board raises the question of whether it is appropriate to conduct a judicial review at the same time as the leave application, noting that if judicial review is to be conducted, it must file a return as soon as practicable. If the leave to appeal and the judicial review are conducted at the same time, a partial record may be produced in the leave application, but a full return must be produced for the judicial review.

Thus, the efficiency of a limited record for the leave application would be lost. I conclude that, as Slatter J noted, cautious parties will file both an application for leave to appeal and judicial review, but the judicial review should generally not be heard until a Court determines whether the issues raised by the Applicant are questions of law or jurisdiction subject to appeal, or questions of fact or mixed fact and law subject to judicial review.

[ 20 ] This also raises the question of whether judicial review may be available on questions of law or jurisdiction. At first glance, it would appear that the availability of a statutory appeal on these questions would suggest that the Court should decline to exercise its jurisdiction to do so. The Alberta Court of Appeal in KCP Innovative Services Inc. v. Alberta (Securities Commission) , 2009 ABCA 102 held that where there is “a clear right of appeal which would provide an adequate remedy, only in exceptional circumstances should judicial review be granted.” (at para. 9).

However, in that case the Court of Appeal went on to note that the Securities Act , RSA 2000, c. S-4 provided for a direct right of appeal to the Court of Appeal without the need to seek leave, with no privative clause and no restrictions on the nature of the questions that can be brought before the Court (at para. 11).

Conversely s. 470 requires leave to appeal and restricts the nature of the questions that can come before the Court. [ 21 ] The factors to be considered in determining whether there is an adequate alternative remedy include: “the procedure on appeal, the composition and powers of the appeal tribunal, the manner of exercise of its powers, the burden of previous findings, time and cost, as well as the convenience of the alternate remedy and the nature of the error” ( KCP at para. 10).

Arguably then, the Court could, in exceptional circumstances, decide to grant judicial review on a question of law that did not fall within the parameters of the leave to appeal if the criteria set out in KCP demonstrated that the statutory appeal was not an adequate remedy. [ 22 ] In Precision Drilling Corporation v. Calgary (City) , 2011 ABQB 503 , McCarthy J refused to hear an application for judicial review of a CARB decision under the new legislation where the issues raised were questions of law.

He concluded that while in exceptional circumstances judicial review might be available, in that case the statutory appeal was an adequate alternate remedy. He noted that the statutory requirements – a 30-day limitation period and the necessity that the issue be of importance and have some chance of success – represented a reasonable attempt on the part of the legislature to prevent unmeritorious appeals.

He also rejected the Applicant’s assertion that the new regime lead to uncertainty and therefore constituted exceptional circumstances, relying on the comments of Slatter J in Buckley regarding filing applications for both judicial review and leave to appeal. [ 23 ] The Court of Appeal, in decisions under s. 688 of the MGA , 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 , and 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 .

Thus, the Court might identify an error of law that would not be subject to appeal because it was not objectively of jurisprudential value. [ 24 ] A court, therefore, might find exceptional circumstances justifying exercising its discretion to grant judicial review, where the question of law is very narrow and not likely to have precedential value, but has serious consequences for the Appellant. Then, the availability of the statutory appeal might be considered as a type of privative clause in the standard of review analysis.

However, consideration of such a situation would be dependent on the particular facts and would likely be extremely rare. C. Conclusion on the procedural question [ 25 ] In my opinion, it is preferable that the leave application and the appeal proper be heard as separate applications.

However, there is no express prohibition against hearing them together, and therefore the Court could hear the combined applications if the entire record is before it, it accepts the questions of law raised by the Appellant and responded to by the Respondent, and there are no other Respondents that should be added to the Appeal. [ 26 ] In my opinion, however, the leave application should be heard before the judicial review, and judicial review should only proceed if the Court found that no questions of law or jurisdiction were raised, and the only issues were issues of fact or mixed fact and law.

In exceptional circumstances, it may be possible to hear judicial review on a question of law or jurisdiction, but determination of that question will be dependent on the particular facts. II. Leave to appeal A. Facts

[ 27 ] The Property in question, located at 4903 Eleniak road NW, Edmonton AB, was assessed as industrial property at a value of $6,723,500 in the 2010 assessment year for the 2009 taxation year. The relevant valuation period for the 2010 assessment is therefore 2009. Had it been assessed as farmland, the assessed value would have been $863,000. The Applicant complained to the CARB, asserting that the property should have been assessed as farmland. In support of its complaint, the Applicant filed a written expert report by Bruce Simpson of Serecon Valuations Inc. Mr. Simpson also gave oral evidence.

His report concluded that the Property should have been assessed as farmland. [ 28 ] Among the evidence relied on by the Applicant were: a. filed annual leases between the landowner and Richard Johnsen for the years 1999-2010; the leases ran from January 1 to December 31 each year and included terms that provided that the lands would be used solely for agricultural purposes; b. Mr. Simpson’s testimony and report regarding his inspection of the Property and interview with the Johnsen family in August and September 2010 (Mr. Johnsen died in 2010, and his son Stephen Johnsen took over farming the property); c. Mr.

Simpson’s evidence that the Property was seeded to an alfalfa/grass hay mix used primarily for cattle feed, which had been recently cut and baled; d. Mr. Simpson’s conclusion that the property was used for production of a viable agricultural crop within the meaning of the MGA ; e. Mr. Simpson’s evidence that the Property was leased to Mr. Johnsen for farming purposes for even more than the 15 years represented by the leases, and that after Richard Johnsen’s death, his son farmed the Property; f. Other properties surrounding the Property and owned by the Applicant were assessed as farmland; and g.

The email relied upon by the City was provided by a former employee of the Applicant who was later fired for incompetence. [ 29 ] The City relied on photographic evidence of the Property taken in May 2010, arguing that the photos demonstrated that the property had not been farmed during the assessment period. It also relied on an e-mail exchange between an Altus Group employee who suggested that the Property was not being used as farm land during the assessment period. The Applicant argues that this email was not reliable, as the employee had later been terminated for incompetence.

Arguably, this statement was not in evidence before the CARB, although it was raised in questions to the City representative, the assessor, Mr. Petrunik. [ 30 ] Mr. Simpson and Mr. Petrunik, the assessor who appeared on behalf of the City, differed significantly on their assessment of whether these photos revealed that the crop had been harvested in 2009. Mr. Petrunik asserted that the pictures showed significant crop growth in the spring of 2010, indicating that the crop had not been cut in 2009. Mr.

Simpson indicated that, in his opinion, the growth was consistent with having been swathed once in 2009 early in the season and that the growth in the 2010 picture was not consistent with a full year’s growth. He further indicated that the swaths he saw in August 2010 were not consistent with two years’ growth. [ 31 ] The City argued before the Board that the definition of “farming operations” under the MGA Regulations requires raising, production, and sale of agricultural products.

If the crop was not cut, it could not be said to have been produced, and therefore, according to the City was not used for farming operations and could not be classified as “farmland”. [ 32 ] The Applicants argued that the Property was farmed, that lease evidence established that the Johnsens leased the land from the Applicants for over 15 years for “farming operations”, and that the Property was hayed. Further, the City has accepted it as “farmland” in the taxation years before 2009 and in 2010.

Moreover, they argued, it was unfair to say in 2010 that the Property was not farmed in 2009 based on pictures taken in 2010. Mr. Simpson, on behalf of the Applicants, also argued that even if the Property was not hayed in 2009, it may still be farmland, as there are many circumstances in which people leave land idle for a year for a variety of sound agricultural reasons.

[ 33 ] The CARB concluded that the assessment was fair and reasonable. It gave extremely short “Reasons for the Decision”: The Board placed greatest weight on the e-mail evidence provided by the Respondent (R-1, pages 18 & 19) which supported the Respondent’s position that the subject property was not being utilized for farming operations for the assessment period, as required under the applicable legislation and regulation.

The Board placed little weight on the photographic evidence supplied by either party as neither party could definitively establish through photographs whether or not farming activity occurred during the assessment period. The Board also placed little weight on the consultant report provided by the Complainant as the report was unable to ascertain that farming activity had taken place on the subject property during the assessment period. In

summary the Board found that the Complainant did not meet the onus or burden of proof required to make a revision to the assessment. B. What is the test for leave to appeal? [ 34 ] The MGA provides that leave to appeal a CARB decision may be granted if the Court determines that the Applicant has met the following statutory requirements: 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. i.

Do the issues raise a question of law? [ 35 ] The Applicant argues that the CARB erred in law by: 1. Breaching the requirements of natural justice and procedural fairness; 2. Failing to apply, or incorrectly applying, the legal test for determining property classification; 3. Ignoring evidence or failing to give appropriate weight to evidence; and 4. Failing to provide adequate reasons.

[36] In regards to the first ground, the Applicant asserts that the CARB decision did not identify or apply the relevant legal tests,did not address much of the evidence before it, failed to give appropriate weight to evidence, and failed to give clear, precise andintelligible reasons for its decision. In other words, the Applicant alleges that the alleged breaches of natural justice are the other threegrounds for appeal.

A failure to provide reasons, or a failure to provide adequate reasons, may be a breach of natural justice (Baker v.Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR 817 at para 43). Failure to identify andapply legal tests is an error of law (Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., (SCC), [1997] 1 SCR 748 at paras. 35; Alberta (Workers' Compensation Board) v. Appeals Commission (Davick), 2005 ABCA276, 371 AR 318 at para. 22), but not a breach of natural justice.

Further ignoring evidence or giving inappropriate weight to evidence isa question of fact or a question of mixed fact and law, not a question of law (Housen v. Nikolaisen, 2002 SCC 33 , [2002] 2SCR 235, at para 23; Davick, at para 69).

Nor is it a breach of natural justice. [37] A breach of natural justice is a question of law; of the three allegations of breach of natural justice by the CARB, only thequestion of whether the CARB provided adequate reasons falls within this ground, and is repeated as the fourth independent ground. [38] The second ground raised by the Applicant is the failure to identify and apply legal tests, noting that the CARB did notaddress the legislative and regulatory definition of “farming operations” and did not apply that definition to the facts.

This raises aquestion of law. [39] The third ground raised by the Applicant, ignoring evidence or failing to give appropriate weight to evidence, does not raise aquestion of law, but one of fact or mixed fact and law. [40] Fourthly, the Applicant argues the CARB Decision does not give adequate reasons because: 1. It states, without analysis, that it gave “little” weight or “greatest” weight to certain evidence; 2. It fails to set out its findings of fact, the basis for its conclusions, and why it accepted some evidence and rejected other evidence; 3.

It fails to provide a clear and intelligible basis for its decision; and 4. It failed to address the Applicant’s Expert’s evidence, both oral and written, that the property was used for farming. [41] I conclude that the alleged failure to provide adequate reasons, as a breach of procedural fairness, raises a question of law. ii. Are the issues of sufficient importance to merit an appeal? [42] In Omega2 Corporation the Court of Appeal indicated that an issue is sufficiently important to merit an appeal “if it isimportant for jurisprudential purposes” (at para. 9).

The Court has also held that sufficient importance is not a question of the subjectiveimportance of the matter to the applicant, but must be determined on an objective scale: 845971 Alberta Ltd v. Grande Prairie(Subdivision and Development Appeal Board) (at para. 8). [43] In my view, the sufficiency of reasons by an assessment review board is of jurisprudential importance, and is closely related towhether an assessment review board has appropriately identified the legal test and

definitions. The specific question of what constitutes“farmland operations” also had important jurisprudential implications. iii. Does the appeal have a reasonable chance of success?

[44] Having reviewed the transcript of the hearing, it is clear that the parties raised several arguments that the CARB’s reasons didnot address, even in a cursory manner, including arguments regarding the

interpretation of the MGA, the definition of farming operations,and whether the Property was being farmed during the 2009 taxation year. Further, while the CARB indicated that it gave little weight tosome evidence and much weight to other evidence, it did not explain its rationale for doing so. In my opinion, the appeal has a reasonablechance of success. [45] I therefore grant the Applicant’s leave to appeal on the following questions of law: 1. Did the CARB provide adequate reasons for its decision? 2. Did the CARB fail to identify and apply the appropriate legal tests? III.

Should the appeal be decided at the same time as the leave to appeal? [46] I have indicated that the leave to appeal and the appeal may be considered at the same time if: 1. the entire record is before the Court, 2. the applicant and respondent have appropriately stated, and responded to, the question of law (or jurisdiction) at issue, and 3. there is no need to add further respondents. [47] Here, the entire record is before the Court. This will not always be the case.

As the CARB noted in its Brief, the informationbefore the Court on an appeal includes the transcript, the record of the hearing, and the Board’s reasons for decision. All three have beenfiled in this matter because it was not clear what the procedure would be and the Applicant took the position that all three matters (theleave application, the appeal, and the judicial review) should be heard together.

In the future, the leave application should be heardseparately from the appeal and the judicial review and the Board will not be required to file the entire record for the leave application. [48] Further, I have not re-framed the questions of law raised by the Applicant; I have limited them to the two questions statedabove. The parties, therefore, have had an opportunity to address the questions at issue. I also find that there is no need to add furtherrespondents. iv. Conclusion [49] I will, therefore, decide the appeal. IV. The Appeal A.

Standard of Review [50] The adequacy of reasons is a component of the duty to be fair and the principles of natural justice: Baker v. Canada (Ministerof Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817. The standard of review of alleged breaches of naturaljustice and the duty to be fair is correctness: Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, 2009 SCC 12 at para. 43.

[ 51 ] I must also set the standard of review for the question of whether the tribunal applied the correct legal test and whether it applied it correctly. [ 52 ] In Dunsmuir v. v. New Brunswick, 2008 SCC 9 , [2008] 1 SCR 190 the Court noted that an exhaustive standard of review analysis may not be necessary if the existing jurisprudence has already established the standard (para. 57 and 62). As previously noted, under the previous legislative regime, decisions by assessment review boards were appealed to the MGB. The MGB’s decisions were then be subject to judicial review by this Court.

There are, therefore, no reported decisions analyzing the standard of review for questions of law on appeal under the new legislation. [3] However, the Applicants rely on the unreported decision, Ruppert v. Calgary Assessment Review Board and the City of Calgary , (November 18, 2010), Calgary Action # 1001-11405 (AB QB) which set the standard of review of questions of law as reasonableness. [ 53 ] I agree with Poelman J’s analysis in Ruppert that reasonableness is the appropriate standard.

In coming to this conclusion, I considered the following: 1. the presence or absence of a privative clause; 2. the nature of the question, 3. the purpose of the tribunal, and 4. the tribunal’s expertise. [ 54 ] The legislation permits an appeal and has no privative clause. However, the appeal is only on questions of law that are sufficiently important and which have a chance of success.

This suggests that the legislature intended some level of deference to the tribunal. [ 55 ] The Supreme Court of Canada indicated that questions of law that do not fall within the tribunal’s expertise and are of central importance to the legal system attracts a correctness standard, while questions of law that do not rise to this level may attract deference (para. 55). The question of whether property is being used as farmland is a question within the expertise of the tribunal, and is not of central importance to the legal system.

This also suggests deference. [ 56 ] I conclude that the standard of review of the second issue is reasonableness. B. Did the CARB provide adequate reasons for its decision? [ 57 ] The Supreme Court of Canada in R. v. Sheppard , 2002 SCC 26 , [2002] 1 SCR 869 discussed the rationale for requiring adequate reasons. While the Supreme Court was addressing the necessity in the criminal law context, the principles are also applicable to the administrative law context and the duty to be fair.

As noted earlier by the Court in Baker , where the decision has important significance for an individual and where there is a statutory right of appeal, written reasons will be required for procedural fairness. [ 58 ] In Sheppard the Court held that the reasons must be sufficiently intelligible that the affected parties understand why the decision was reached and that meaningful appellate review is possible. In particular, the Court noted that reasons take on a particular importance if there is contradictory evidence on key issues (para. 28). [ 59 ] The Ontario Court of Appeal in R. v.

Sabela , (2005) 100 OAC 249, 18 MVR (5th) 228 (Ont CA) applied the Sheppard

reasoning to note that the appeal judge must be able to see the “analytical path followed by the trial judge”, and that reasons that areconclusory, rather than explanatory, are deficient (para. 9). [60] However, reasons need not be particularly detailed. In R. v. Lagace, (2003) (ON CA), 178 OAC 391,181 CCC (3d) 12 (Ont CA), Doherty J.A. wrote (at para. 32): Sheppard emphasizes that the adequacy of reasons is not measured by the inch or the pound, but rather by the extent towhich those reasons allow meaningful exercise of the rights of appeal.

Short reasons can make the basis for conviction or acquittalcrystal clear, and a weighty judicial tome may obscure entirely how the crucial issue in a case came to be decided the way it was. Theformer reasons serve their assigned purpose, the latter result in reversible error. [61] In Clifford v.

Ontario Municipal Employees Retirement System, 2009 ONCA 670; 98 OR (3d) 210; leave to appeal refused[2009] SCCA No. 461, the Ontario Court of Appeal applied Sheppard to the administrative law context (at para. 29): In the context of administrative law, reasons must be sufficient to fulfill the purposes required of them, particularly to let the individualwhose rights, privileges or interests are affected know why the decision was made and to permit effective judicial review. As R.E.M.held at para. 17, this is accomplished if the reasons, read in context, show why the tribunal decided as it did.

The basis of the decisionmust be explained and this explanation must be logically linked to the decision made. This does not require that the tribunal refer toevery piece of evidence or set out every finding or conclusion in the process of arriving at the decision. To paraphrase for theadministrative law context what the court says in R.E.M. at para. 24, the "path" taken by the tribunal to reach its decision must be clearfrom the reasons read in the context of the proceeding, but it is not necessary that the tribunal describe every landmark along the way. (Emphasis added) [62] In Liberty Mutual Insurance Co. v.

Bank of Nova Scotia (2008), (ON SC), 48 BLR (4th) 239; 64 CCLI(4th) 299 (Ont. SCJ) Himel J dealt with the statutory appeal of an arbitrator’s decision, and concluded that the arbitrator’s reasons weresufficient because they were neither generic or conclusory, and they conveyed the basis for accepting or rejecting expert evidence.Further, the arbitrator’s reasons were sufficient to inform Liberty why it lost its arguments. [63] On the other hand, in Yukon v.

McBee, 2009 YKSC 73, (varied on other grounds, 2010 YKCA 8), Nation J granted astatutory appeal of the Human Rights Board of Adjudication, finding that the Board’s reasons did not clearly find necessary facts, did notallude to credibility or conflicting evidence, and did not include any discussion of the path or nexus between the facts and the ultimatefindings. [64] Before the CARB, the Applicant led evidence that: 1. The Property had been leased as farmland for over 15 consecutive years on annual leases; 2. Mr. Simpson, the Applicant’s expert, testified that Mr.

Johnsen, the tenant had died in 2010 and that his son had taken over thefarming. He interviewed the son and inspected the property 3. Mr. Simpson’s evidence was that the property was seeded with an alfalfa/grass hay mix, a crop that is a perennial agriculturalcrop that is typically rotated with annual crops within a five to seven year period. The crop is a forage crop, used for livestock feed.Alfalfa adds nitrogen to the soil, and is therefore useful in crop rotation, reducing the amount of crop inputs necessary for future years. 4. Typically, according to Mr.

Simpson, two cuts of hay are conducted each year – it grows, is harvested, grows back and isharvested again.

5. Mr. Simpson’s evidence was that the pictures taken by the City in May 2010 were indicative of the Property having been hayed at least once in 2009, and he expressly disagreed with the City’s evidence that the pictures demonstrated that the Property had not been hayed at all in 2009. 6. Mr. Simpson testified that farmers will often leave land fallow (not harvested), and that leaving land fallow is still consistent with “farming operations.” 7. The employee whose email was relied on by the City was terminated.

The Applicant argued that his evidence was not reliable. [ 65 ] The CARB’s reasons were conclusory and not explanatory. They did not address the conflicts in evidence between Mr. Simpson and Mr. Petrunik, stating only that the Board gave little weight to the photographic evidence from 2010 because “neither party could definitively establish ... whether or not farming activity occurred during the assessment period.” The Board further gave no explanation for giving Mr.

Simpson’s expert report little weight saying only that “the report was unable to ascertain that farming activity had taken place on the subject property during the assessment period.” These statements do not provide a clear path of analysis to permit this Court to assess the Board’s reasoning. [ 66 ] Further, the Board did not address the credibility concerns raised in regards to the employee’s email, nor did it provide any basis for why it relied so heavily on this one piece of evidence, in light of the other evidence, including the historical evidence that this Property was used for farming operations for over 15 years, that the crop on it was a perennial crop, and that the other properties surrounding it were similarly leased and were assessed as farmland. [ 67 ] Importantly, the CARB in its reasons, did not address the appropriate test under the legislation and regulations for determining whether the Property should be assessed as farmland.

Without that analysis, there is no way for this Court on appeal to determine whether the CARB accepted the City’s argument that a crop must be produced (swathed and baled) every year on the Property to qualify as farmland, and if so, why. Nor did it provide a basis for rejecting Mr. Simpson’s argument that the Property could still be assessed as farmland if it lay fallow for a justifiable agricultural reason. [ 68 ] The City argues that, within the context of the record, it is clear that the CARB determined that the test was whether a crop was cut in the assessment year, 2009. Since Mr.

Simpson did not inspect the Property in 2009, his evidence was properly given little weight. That may be the inference that the City draws, but in my view, there is insufficient basis in the reasons to ascertain why the CARB reached those conclusions, why it rejected Mr. Simpson’s evidence that he could draw conclusions about what happened in 2009 from what he saw in 2010, and what logical route the CARB followed to conclude that the

definitions in the regulation required that a crop be cut each year. B. Did the CARB fail to identify and apply the appropriate legal tests? [ 69 ] In my view, the CARB’s failure to provide adequate reasons includes this failure to identify the appropriate legal tests. This Court cannot begin to determine whether the CARB correctly applied the legal tests, since it failed to even identify a legal test. C.

Conclusion on Appeal [ 70 ] I therefore grant the Applicant’s appeal and find that the CARB breached the principles of natural justice and the duty to be fair by failing to provide adequate reasons for its decision. The decision is therefore cancelled, and I refer the matter back to the CARB to rehear the matter. V. The Judicial Review

[ 71 ] I have granted the appeal and refer the matter back to the CARB for a re-hearing. In light of that decision, it is unnecessary to consider the judicial review application. I decline to exercise my jurisdiction to consider the judicial review as there is a clear right of appeal that has provided an adequate remedy. VI. Conclusion [ 72 ] The applications for leave to appeal and the appeal are granted. The parties may speak to costs within 30 days of this decision. Heard on the 18 th day of May, 2011. Dated at The City of Edmonton, Alberta this 28 th day of September, 2011. J.M. Ross J.C.Q.B.A.

Appearances: Kelsey Drozdowski Bennett Jones LLP for the Applicant Cameron J. Ashmore City of Edmonton Law Branch for The City of Edmonton Kate L. Hurlburt Darin S. McKinley Emery Jamieson LLP for Edmonton 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.

(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. [1] For a discussion of the record and the admission of affidavits to establish what was before the CARB see Globexx Properties Ltd. v. Edmonton (City) , 2011 ABQB 464 . [2] I note that s. 470(9) requires that the transcript, the record of the hearing, the ARB’s findings, and reasons for the decision be forwarded to the Court if a leave application is granted.

This implies that the Court cannot decide an appeal without the entire record. [3] The following are the only three reported decisions I have found dealing with appeals under the new legislation: Edmonton (City) v. Edmonton (City) Assessment Review Board , 2010 ABQB 634 ; Globex Properties Ltd. v. Edmonton (City) , 2011 ABQB 464 ; and Precision Drilling Corp. v. Calgary (City) , 2011 ABQB 503 . Only the first decision addressed the standard of review of a question of law, and then did so in the unique circumstances of the urgent application.