Edmonton (City) v. Edmonton Composite Assessment Review Board, 2012 ABQB 154

Court of Queen ’ s Bench of Alberta Citation: Edmonton (City) v. Edmonton Composite Assessment Review Board, 2012 ABQB 154 Date: 20120302 Docket: 1103 10626 Registry: Edmonton Between: The City of Edmonton Applicant - and - The City of Edmonton Composite Assessment Review Board and Canada Safeway Limited et al. Respondents _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice A.W. Germain _______________________________________________________ 1.

Introduction [ 1 ] An Edmonton municipal property taxpayer has a right under Municipal Government Act , R.S.A. 2000, c. M-26, s. 460 [the “ MGA ”] to challenge its property tax assessment through a “complaint” to the Composite Assessment Review Board [the “CARB”]. Colliers International Realty Advisors Inc. [“Colliers”] is a corporation that acts as a property owner’s agent for this process. Colliers advances municipal property tax complaints to the CARB on behalf of its clients.

[ 2 ] Colliers, in 2011, submitted a number of complaints to the CARB concerning Edmonton properties. The City of Edmonton [“Edmonton”, or the “City”] alleges 71 of these complaints are very similar and do not adequately detail the substantial property valuation defect(

s) which are the basis for the property owners’ complaints. The City challenged the validity of these ‘boilerplate’ complaints, arguing that these complaints did not meet the requirements of MGA , s. 460, and Matters Relating to Assessment Complaints Regulation , Alta Reg 310/2009, s. 2 [the “ MRAC ”].

Alternatively, the City asked the CARB to identify what issues would be addressed in relation to each compliant. [ 3 ] On May 24, 2011 the CARB heard an application from the City to dismiss the Colliers complaints as invalid for not meeting the minimum legislative requirements for a valid municipal property tax assessment complaint.

The CARB rejected that application, and on June 3, 2011 ordered that the Colliers complaints proceed to a full hearing. [ 4 ] On June 30, 2011 the City filed an application for leave to appeal questions of law or jurisdiction that flow from the June 3, 2011 CARB decision, and for judicial review of a number of other issues. [ 5 ] Edmonton alleges four errors of law or jurisdiction, that CARB erred in law or exceeded its jurisdiction: 1. by its failure to determine what information was available on the assessment notices, 2. when it concluded the Colliers complaints met the minimum legislative requirements, and 3. by its failure to provide adequate reasons, and 4. by its failure to identify or otherwise clarify the issues and grounds for complaints evaluated at the May 24 hearing, [ 6 ] The City’s parallel judicial review identifies four defects in the June 3 CARB decision: 1. the CARB made unreasonable findings of fact, 2. that the decision itself is unsupportable or unreasonable, 3. that the June 3 reasons are inadequate, and 4. that the CARB breached the principles of natural justice when it did not identify or otherwise clarify the issues and grounds for complaints evaluated at the May 24 hearing. [ 7 ] The last two grounds for appeal and judicial review are therefore the same. [ 8 ] The property owners argue the CARB decision was correct.

CARB has made restricted submissions to clarify the record, address the tribunal’s jurisdiction, and comment on the appropriate standard of review: Alberta Teachers' Association v. Alberta (Information and Privacy Commissioner) , 2011 ABQB 19 at paras. 28-30 , 40 Alta. L.R. (5th) 353; 1447743 Alberta Ltd. v. Calgary (City) , 2011 ABCA 84 at paras. 20-21 , 502 A.R. 330.

[ 9 ] In argument counsel expressed frustration with the legislation that creates the possibility of a duality of the process a statutorily described appeal, plus the inherent jurisdiction of the court to entertain certain issues through judicial review. While practitioners routinely appearing before CARB do not necessarily wish to reduce the number of arrows in their quiver they all frankly recognized that whatever playing field was finally established would apply equally to all. Counsel also observed that the pragmatic approach taken by my colleague Justice Ross in Associated Developers Ltd. v.

Edmonton (City) , 2011 ABQB 592 , (“the Ross approach”) made sense based on the state of law but urged me to consider whether I was in a position to make a definitive ruling concluding that, with the benefit of the statutory right of appeal, a successful judicial review application would be unlikely to succeed and thus discourage the practice. [ 10 ] The outcome of this decision was expressed orally to counsel some months ago, to allow the appeals to go forward on their merit, but the delay in issuing this judgment flows from the hoped-for value-added component that involves the question of whether a litigant in this environment has a restricted to right of appeal, and is not able to advance both an appeal and judicial review.

This “add on issue” explains the delay in the release of this judgment, while these reasons help explain why I am unable to advance the law any further in this area. 2. Relevant Legislation [ 11 ] A “complaint” of a municipal property tax assessment is authorized by MGA , s. 460. That

section describes certain complaint requirements: 460(1) A person wishing to make a complaint about any assessment or tax must do so in accordance with this section.

(2) A complaint must be in the form prescribed in the regulations and must be accompanied with the fee set by the council under section 481(1), if any. ...

(5) A complaint may be about any of the following matters, as shown on an assessment or tax notice: (

a) the description of a property or business; (

b) the name and mailing address of an assessed person or taxpayer; (

c) an assessment; (

d) an assessment class; (

e) an assessment sub class; (

f) the type of property; (

g) the type of improvement;

(

h) school support; (

i) whether the property is assessable; (

j) whether the property or business is exempt from taxation under

Part 10. ...

(7) A complainant must (

a) indicate what information shown on an assessment notice or tax notice is incorrect, (

b) explain in what respect that information is incorrect, (

c) indicate what the correct information is, and (

d) identify the requested assessed value, if the complaint relates to an assessment.

(10) A complaint must include the mailing address of the complainant if the mailing address of the complainant is different from the address shown on the assessment notice or tax notice. ... [Emphasis added.] [ 12 ] MRAC , s. 2(2) indicates a non-compliant complaint is invalid and must be dismissed: 2(1) If a complaint is to be heard by an assessment review board, the complainant must (

a) complete and file with the clerk a complaint in the form set out in

Schedule 1, and (

b) pay the appropriate complaint fee set out in

Schedule 2 at the time the complaint is filed if, in accordance with

section 481 of the Act, a fee is required by the council.

(2) If a complainant does not comply with subsection (1), (

a) the complaint is invalid, and (

b) the assessment review board must dismiss the complaint . [Emphasis added.]

[ 13 ] The present application for leave to appeal is authorized by MGA , s. 470: 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 . ...

(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. ... [Emphasis added.] [ 14 ] MGA , s. 468 requires the CARB provide written reasons for its decisions. 3. The Leave Process [ 15 ] Appeal of CARB decisions to the Court of Queen’s Bench is a comparatively new process. Before January 1, 2010 legislation

provided a right to appeal a CARB decision to the Municipal Government Board, with the further option of judicial review. [ 16 ] The most extensive commentary on the current leave to appeal process is that conducted by Justice Ross in Associated Developers Ltd. v. Edmonton (City) . At para. 5 she identifies three criteria for a successful leave application: [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. [ 17 ] Normally a s. 470 appeal is a two-stage process with a preliminary leave application and subsequent full appeal (paras. 4-12), though these two stages may be combined (para. 15) where: 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. [Footnote omitted.] 4.

The Availability and Scope of a Judicial Review of the CARB [ 18 ] In the October 19, 2011 hearing I requested submissions from the parties on whether judicial review is available for a CARB decision, and if so, what was the scope of that judicial review. [ 19 ] One possible

interpretation of the new MGA , s. 470 appeal procedure is that it displaced any authority for the court to conduct a judicial review of a CARB decision. A second possible

interpretation is that judicial review is possible for any question that falls outside the statutory leave to questions of law or jurisdiction. A yet third alternative scope for the right to judicial review is that a superior court may conduct a judicial review of:

a) any issue that is not a question of law or jurisdiction, or

b) a question of law or jurisdiction for which that court denied leave to appeal. [ 20 ] Colliers takes the position that the appeal and judicial review processes are essentially alternatives, except for perhaps extraordinary circumstances. Judicial review of questions of mixed fact and law is not warranted in this case, and judicial review should

be refused. [21] The City argues that judicial review is available for any question that is neither a question of law or jurisdiction, and in certaininstances for questions of law or jurisdiction for which the court denies a s. 470 leave application. Edmonton notes that leave may bedenied for a question of law or jurisdiction where that question is either not sufficiently important or does not have a reasonablepossibility for success: MGA, s. 470(5).

The City suggests that if importance is an objective evaluation, then some matters that aresubjectively important to a party should have an associated judicial review remedy. However, if leave is refused because there is noreasonable prospect of success then that ends the possibility of judicial review, given the low threshold for a ‘reasonable prospect’:McCauley Community League v. Edmonton (City), 2011 ABCA 327 at para. 10; Rendle v. Edmonton (City) Development AppealBoard, 1995 ABCA 499 , [1995] A.J. No. 1169 at para. 3 (QL) (Alta.

C.A.). [22] The CARB takes a position similar to that of the City, but suggests that failure to satisfy the “sufficient importance” thresholdmay not result in a right to challenge the inadequately important issue via judicial review, but that in light of the City’s arguments thatissue should be addressed at a later point. [23] Prior to the 2009 amendments and MGA, s. 470 there was no statutory right of appeal to the Alberta Court of Queen’s Bench.However, municipal tax assessments were subject to judicial review, for example: Boardwalk Reit LLP v.

Edmonton (City), 2008ABCA 220, 437 A.R. 347, leave refused [2008] S.C.C.A. No. 328. [24] When the new s. 470 appeal process was discussed in the Alberta Legislature on May 13, 2009 there was a brief exchangeconcerning the nature of the Queen’s Bench appeal process. In response to an inquiry on potentially prohibitive new costs of an appealprocess, Minister of Municipal Affairs Ray Danyluk replied: Mr. Speaker, presently and in the new bill the contents are exactly the same: the only way that you can appeal a point of law is throughthe courts. It's no different now.

It's not going to be any different in the future. That apparently indicates the legislature intended to leave the scope of court review as it had previously existed. [25] Subsequent Queen’s Bench decisions have also concluded that a right to judicial review remains, but that review is usuallyrestricted to questions outside those addressed by the s. 470 appeal process: Precision Drilling Corp. v. Calgary (City), 2011 ABQB 503,47 Alta. L.R. (5th) 26. Justice Ross in Associated Developers Ltd. v. Edmonton (City) considered how a challenge to a CARBassessment via appeal and judicial review ought to be addressed.

At para. 26 she concludes that the s. 470 leave process should occurprior to any judicial review. [26] I agree with these results. Justice McCarthy in Precision Drilling Corp. v. Calgary (City), at para. 7, notes that Dunsmuir v.New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 confirms that the judicial review authority of superior courts of general jurisdiction isconstitutional and cannot be extinguished by legislation. That applies to review of CARB decisions. [27] Justice Ross concludes at Associated Developers Ltd. v.

Edmonton (City), paras. 23-24, that an ‘unimportant appeal’ may bethe subject of a judicial review, however that kind of review is unlikely: [24] A court, therefore, might find exceptional circumstances justifying exercising its discretion to grant judicial review, where thequestion of law is very narrow and not likely to have precedential value, but has serious consequences for the Appellant. Then, theavailability 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. [28] I agree with the reasoning of the City that a finding, during a leave application, that there is no “reasonable chance of success”for an appeal on a question of law or jurisdiction is sufficient to extinguish the possibility of a judicial review on the same issue. TheAlberta Court of Appeal has indicated the reasonable success threshold for leave to appeal is very low (McCauley Community League v.

Edmonton (City) ; Rendle v.

Edmonton (City) Development Appeal Board ) and probably analogous to the Alberta Rules Of Court , Alta Reg 124/2010, s. 3.68(2) authority to strike out pleadings that disclose “... no reasonable claim or defence to a claim ...”. [ 29 ] I therefore conclude that there is a possibility that the City may conduct a judicial review of the CARB’s decision, provided that the issue in question is: 1. not a question of law or jurisdiction, or 2. is a question of law or jurisdiction that is not “of sufficient importance to merit an appeal”. [ 30 ] What remains is to evaluate the four alleged grounds for appeal, whether these are issues of law or jurisdiction, have a reasonable possibility of success, and are of sufficient importance to warrant appeal. 5.

Analysis [ 31 ] Edmonton raises four alleged errors of law or jurisdiction. I will address each individually. A. Failure to Determine the Assessment Information [ 32 ] The City complains that the CARB misinterpreted or was incorrect on what information the property owners had available concerning their assessments, and that is a basis for appeal. The June 3 decision at p. 7 comments on “web access to a details report”: ... which will inform the taxpayer of, inter alia: study area, total floor area, effective year built, condition, site coverage, adjustments.

It does not provide information as to how or on what basis an assessment was arrived upon. [ 33 ] The CARB and Edmonton argue this is a question of law: whether or not the CARB correctly interpreted the MGA to identify whether available online information is part of the assessment notice. That fails to recognize that the nature and existence of the online information, a question of fact, is inevitably an aspect of that analysis.

The relevant legislation does not, for example, indicate that a taxing municipality must provide information that relates to property assessment in a given format, though the minimum requirements for a valid assessment are indicated: MGA , ss. 303, 309, Matters Relating to Assessment and Taxation Regulation , Alta Reg 220/2004, s. 27.7 [“ MRATR ”]. [ 34 ] The legislation does, however, comment on how information that supports the methodology of an assessment may be requested by a taxpayer ( MGA , s. 299) and then provided in a number of formats ( MRATR , s. 27.4).

Arguably that is what the CARB was describing, though again meaningful review of that question will require investigation of the factual nature and extent of the information available by online means. [ 35 ] The City’s own argument makes the role of fact obvious. It complains at para. 48 of its Sept. 27 brief that: The CARB statement that the online information does not have information on capitalization rates and lease rates is incorrect on the evidence. That is clearly an alleged error of fact; that the CARB was in error in when it conclude what was or was not available to the taxpayer.

[ 36 ] I therefore conclude the issue of the full scope of information the property owners did or did not have is a question of fact, and therefore falls outside the scope of the MGA , s. 470 appeal process. See also Alberta (Minister of Municipal Affairs) v. TransCanada Keystone Pipeline Limited Partnership , 2011 ABQB 460 for

interpretation of a similarly worded appeal provision in MGA , s. 506(5). B. Failure to Identify or Clarify the Issues and Grounds for Complaint [ 37 ] The second ground for appeal is that the CARB did not identify what it concluded were valid issues and bases for a property tax assessment complaint after it confirmed that the Colliers complaints had met the statutory minimum requirement. The City also complains the CARB offered no basis for that conclusion in its June 3 reasons.

Here there is a legislated requirement to provide reasons: MGA , s. 468. [ 38 ] Rothstein J. in Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Association , 2011 SCC 61 [“ Alberta Privacy Commissioner ”] has explained the adequacy of reasons requirement indicated in Dunsmuir v. New Brunswick . Reasons provided by a tribunal should be approached with deference: Newfoundland and Labrador (Treasury Board) , 2011 SCC 62 at para. 21 ; Calgary (City) v. Alberta (Municipal Government Board) , 2012 ABCA 13 at paras. 15-16 .

During judicial review a court should be sensitive to implied reasoning ( Alberta Privacy Commissioner , at paras. 53-54), and other decisions by the same tribunal that address the same or related topics ( Alberta Privacy Commissioner , at paras. 53-54). [ 39 ] In the June 3 decision at pp. 9-10 the CARB cites Colliers v. City of Red Deer (Central Alberta Regional CARB; June 24, 2010), which comments on the adequacy of a complaint and includes the following passage: This CARB finds it to be that at least one triable issue related to value is articulated in the complaint form.

The actual review of the adequacy and factual foundation for the complaint would then be conducted in the formal assessment hearing. [ 40 ] I conclude this cited passage provides the CARB’s answer: the threshold for a full hearing is at least one potentially viable appeal issue and that where that minimum is met, then the complaint, as a whole, proceeds to a full hearing. [ 41 ] Colliers has also provides another CARB decision, Alberta Property Tax & Assessment Solutions v.

City of Edmonton (Edmonton CARB, July 26, 2011) where Edmonton challenged the adequacy of complaint notices and in the alternative demanded that the CARB identify what were the live issues for the appeal. In that decision the CARB explicitly concluded it had no jurisdiction to narrow the grounds of a complaint without hearing that complaint in full: [Edmonton] requested that the Board clarify the issues of the complaint if the [CARB] allows them to proceed to a merit hearing.

In this regard the [CARB] has determined that this is not the role of this Board. [ 42 ] As a question of jurisdiction this issue falls within the scope of a s. 470 appeal. The reasons of the CARB are due deference: Alberta Privacy Commissioner , Newfoundland and Labrador (Treasury Board) . This is clearly a serious issue for this question would substantially affect the pre-hearing role of the CARB in scrutinizing tax assessment complaints for any taxpayer. [ 43 ] However, I conclude that not only is the CARB’s

interpretation of its role in preliminary review role reasonable, it must be correct. As a consequence, there is no prospect that this ground for appeal can succeed. The CARB concluded and I agree that the complaint procedure means that any restriction or characterization of valid complaint issues cannot occur at a preliminary stage, such as where the CARB evaluates, according to MRAC , s. 2(2), whether a complaint is non-compliant and must be dismissed.

A property owner who advances a complaint has an obligation to disclose the evidence that supports its complaint ( MRAC , s. 8(2)(a)(i)) 42 days prior to the complaint hearing. The legislation requires municipal and rebuttal evidence 14 and 7 days, respectively, before the hearing date ( MRAC , s. 8(2)(b-c)).

[ 44 ] Consequentially the City is asking the CARB to effectively decide the validity of grounds for assessment prior to the CARB having received much relevant information, let alone arguments at the hearing itself. If there were any basis for the CARB to refine the scope of a complaint prior to the complaint hearing then that authority perhaps would operate similar to the authority under Alberta Rules Of Court , s. 3.68(2) to strike an action that discloses no reasonable claim. [ 45 ] However, the relevant legislative scheme does not provide the CARB that authority, and I see no basis or reason to infer it.

The CARB may evaluate complaints as: 1. a preliminary question of whether the complaint meets the legislative requirements of MGA , s. 460 and MRAC , s. 2(1), and 2. a substantive review of the complaint during the complaint hearing itself. While this may be an area for legislative improvement, the Act does not currently provide it. Such a power would reduce the impact of the draconian result that a complaint must fail if it is ruled to lack specificity. Leave is therefore denied on this issue. C.

Did the Complaints Meet Legislative Requirements [ 46 ] The City argues that the CARB erred in law when it concluded that the complaints met the minimum requirements set out in MGA , s. 460 and MRAC , s. 2(1).

It says the CARB: 1. chose the wrong legal test, 2. misinterpreted the meaning of terms, including “issues”, “grounds”, and “evidence”, 3. inappropriately applied a “substantial compliance” test, and 4. ignored the intention of the legislature. [ 47 ] Edmonton also argues that ‘generic’ complaints cannot possibly meet the intended scheme for property tax assessment appeals, which necessarily have substantially different and unique characteristics. [ 48 ] The City characterizes these errors as one of law, and subsequently jurisdiction since an error at the MRAC , s. 2 ‘gatekeeper’ stage would mean the CARB would either improperly accept or reject jurisdiction over complaints. [ 49 ] Review of the CARB decision clearly indicates the tribunal was conscious of its obligation to reject defective complaints.

The decision notes that it must review each complaint to determine whether the complaint has met the requirements of MGA , s. 460(7): June 3 reasons at pp. 7-8. In other words the CARB has identified the correct test. The CARB identifies a standard for that test, substantial compliance, in reference to the Alberta Court of Appeal decision of Boardwalk Reit LLP v. Edmonton (City) .

It applies that standard and concludes: Given the foregoing, and upon review of the Colliers’ complaints, and noting that all technical requirements have been met, the Board finds that the subject complaints comply with the legislative requirements. Accordingly the complaints shall proceed to the Merit Hearing.

[ 50 ] This decision-making process is, necessarily, an analysis of mixed law and fact. The tribunal examines the complaints and concludes that these specific complaints meet the criteria for the assessment appeal process. Any court that reviews the CARB’s conclusion will also have to follow the same process and examine whether these particular complaints (facts) meet the legislative scheme and criteria (law). [ 51 ] Edmonton’s other argument, that similar or generic complaints must offend the municipal property tax assessment scheme, also requires investigation of the relevant facts.

It is easy to construct a scenario in which a collection of valid property tax assessment complaints may be identical; for example the owners of individual units in a condominium or a row house complex may encounter identical property tax issues. Does that fact make their set of similar complaints invalid? While the CARB decision clearly indicates the Colliers complaints are very similar, that does not necessarily mean they are spurious.

The CARB notes at p. 11 that rejecting similar complaints can be both unfair and lead to absurd results. [ 52 ] Only evaluation of the specific facts of each complaint will disclose whether those complaints meet the MGA and MRAC criteria. The City’s application for leave on this issue is denied as the ground for appeal requires the court evaluate a mixed question of fact and law, which therefore falls outside the scope of a MGA , s. 470(1) appeal. D.

Inadequate Reasons [ 53 ] Last, Edmonton argues that the June CARB decision reasons were inadequate and do not provide a basis to understand the tribunal’s reasoning and decision. Dunsmuir v.

New Brunswick at para. 47 indicates that a tribunal must be held to a reasonable standard of “... justification, transparency and intelligibility within the decision-making process.” That requirement is the basis for why a tribunal may need to provide reasons, either explicit or implied: Alberta Privacy Commissioner , Newfoundland and Labrador (Treasury Board) . [ 54 ] Here written reason are required by legislation: MGA , s. 468(1), and those were provided. [ 55 ] The City identifies four alleged defects: 1. the CARB did not “clarify or identify the issues”, 2. the June 3 decision does not indicate the CARB interpreted its role in light of recent changes to the property tax assessment appeal and challenge scheme, 3. the decision does not explain why ‘generic’ complaints are acceptable, and 4. the reasons do not indicate the meaning and significance of assessment information available via the Internet. [ 56 ] In Newfoundland and Labrador (Treasury Board) , Justice Abella comments at para. 14 on how a court should not review of the adequacy (or inadequacy) of a tribunal’s reasons without assessment of the entire decision making process and result. [14] Read as a whole, I do not see Dunsmuir as standing for the proposition that the “adequacy ” of reasons is a stand-alone basis for quashing a decision, or as advocating that a reviewing court undertake two discrete analyses — one for the reasons and a separate one for the result (Donald J.

M. Brown and John M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf), at § 12:5330 and 12:5510). It is a more organic exercise — the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes . This, it seems to me, is what the Court was saying in Dunsmuir when it told reviewing courts to look at “the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes” (para. 47). [Emphasis added.]

[ 57 ] Further, Justice Abella indicates that a defect in reasons is not an breach of the duty of procedural fairness: para. 21. Any breach of the duty of procedural fairness is a question of law: para. 22. She continues, however, to explain that: “[b]ut where, as here, there are reasons, there is no such breach .” [emphasis added.] [ 58 ] I conclude the alleged defects to the CARB’s June 3 reasons are neither a question of law nor jurisdiction. The CARB was required by MGA , s. 468(1) to provide reasons, and it did so. It met that jurisdictional requirement.

Newfoundland and Labrador (Treasury Board) explains the standard in Dunsmuir v. New Brunswick of transparent, justifiable and intelligible decision making necessarily means looking at all aspects of a decision, including its findings of fact. As such, where a court needs to consider any fact, that review is never purely a question of law. [ 59 ] I presume that Edmonton’s first complaint relates to the CARB’s refusal to ‘distill down’ the complaints.

I have previously concluded that was outside the CARB’s jurisdiction and the CARB adequately explained why that was the case. [ 60 ] Of the other three alleged defects, the ‘generic complaint’ and ‘internet information’ issues clearly involve fact.

The City does not elaborate on how the CARB has failed to “interpret the provisions in a way that reflected the recent changes to the legislative scheme as a whole”, though presumably that analysis would involve prior versions of the legislation, information on the rational and operation of the Alberta property tax assessment and appeal scheme, and Hansard commentary on the reasons for the 2009 amendments.

That too involves fact (operational and Hansard evidence) used to understand the present legislation. [ 61 ] I therefore conclude what remains of this alleged ground for appeal does not meet the MGA , s. 470(1) requirement of being a question of jurisdiction or law. Leave is therefore denied. 6. Conclusion [ 62 ] Edmonton’s leave application is denied. Judicial review is denied for the CARB’s alleged failure to clarify and refine the scope of a complaint following preliminary complaint review. Finally, I am unable to conclude that the legislation which now provides for an appeal thereby precludes judicial review.

Common sense implies that with the appeal provisions, the number of successful judicial review leave applications should plummet, and, when leave is granted, the frequency of successful judicial review should be reduced. However, there is no basis for our court to preclude this remedy. It is an area for legislative change, if perceived necessary. Heard on the 19 th day of October, 2011. Dated at the City of Edmonton, Alberta this 2 nd day of March, 2012. A.W. Germain J.C.Q.B.A.

Appearances: Cameron J. Ashmore City of Edmonton Law Branch for the Applicant Kate L. Hurlburt & Darin S. McKinley Emery Jamieson LLP for the Respondent Gilbert Ludwig Wilson Laycraft for Canada Safeway Limited and other Respondents