Edmonton (City) v. Alberta (City of Edmonton Composite Assessment Review Board), 2012 ABQB 171

Court of Queen ’ s Bench of Alberta Citation: Edmonton (City) v.

Alberta (City of Edmonton Composite Assessment Review Board), 2012 ABQB 171 Date: 20120312 Docket: 1103 14145 Registry: Edmonton Between: The City of Edmonton Applicant - and - The City of Edmonton Composite Assessment Review Board and Gold Bar Developments Ltd. and Gold Bar Investments Ltd. and Hillcrest Place Apartments Ltd. and Andromedia Investments Ltd. and Cemac Enterprises Ltd. and 1492951 Onatrio Inc. and 406472 Alberta Ltd. and 424363 Alberta Ltd. and CVG Canadian Valuation Group Ltd. as agent for the various assessed persons named above Respondents _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice J.E.

Topolniski _______________________________________________________ I. Introduction [ 1 ] The City of Edmonton (City) seeks leave to appeal five related decisions issued by the City of Edmonton Composite Assessment Review Board (Board) on August 11, 2011 concerning the municipal assessment for 30 rental row house properties in five different complexes.

[ 2 ] The hearings before the Board spanned three days. The various property owners were represented by an agent, Canadian Valuation Group Ltd. (CVG) and the City was represented by legal counsel. The sole issue before the Board was whether the City’s Gross Income Multiplier (GIM) was the appropriate market value multiplier for the property tax assessments. With a view to expediency, the parties agreed to “carry forward” common documentary evidence from the hearing on Roll 1171008 to certain other properties (Master File).

Similarly, a good deal of oral evidence taken at the hearings before the Board was “carried forward”. [ 3 ] Stripped down, the parties’ positions before the Board were: a. CVG said that the City’s GIM was not reflective of current market conditions. b. The City urged that CVG’s GIM methodology was flawed and that the City’s assessment was supported by its more credible evidence. [ 4 ] In the result, the Board determined the appropriate GIM was less than what the City had urged, and in doing so the Board used a formula for calculating the GIM that neither party had proposed. Its five decisions parrot one another.

II. Statutory Backdrop [ 5 ] The Board is a statutory body whose functions and jurisdiction is described in

Part 11 of the Municipal Government Act , R.S.A. 2000, c. M-26 ( MGA ) and the Regulations - the Matters Relating to Assessment Complaints Regulation ( MRAC ) and Matters Relating to Assessment and Taxation Regulation ( MRAT ). The MGA , the MRAC , and the MRAT are part of the Board’s home statute. Under the MGA , the Board may change an assessment roll or tax roll or decide that no change is required, but it may not alter any assessment that is fair and equitable, taking into consideration the valuation and other standards set out in the regulations, the procedures set out in the regulations, and the assessments of similar property or businesses in the same municipality (s. 467). [ 6 ]

Section 470 of the MGA governs appeals from the Board to this Court. The cumbersome process for appealing a decision of the Board is to first obtain leave and, if leave is granted have the appeal heard separately. If leave is not granted, judicial review of the Board's decision may be available. [ 7 ] Appeals from the Board are restricted to questions of law or jurisdiction only and leave to appeal is required.

Leave to appeal may be granted if the Court is satisfied that the appeal: (1) involves a question of law or jurisdiction; (2) is of sufficient importance to merit an appeal; and (3) has a reasonable chance of success. (Three-Part Test) [ 8 ] If leave to appeal is granted, the Court may direct who are to be named as the respondents and specify the question(

s) of law or jurisdiction to be appealed. III. Grounds of Appeal

[ 9 ] The City advances six grounds of appeal, alleging in each instance that the Board erred in law or otherwise exceeded its jurisdiction and breached its duty of fairness by: 1. Rejecting certain evidence for the purposes of one issue, and then relying upon it in making its decisions on other issues. 2. Misinterpreting the evidence upon which it based its decisions. 3. Basing its decisions on undisclosed evidence. 4. Completely ignoring issues and uncontested evidence. 5. Ignoring

Section 27.3 of the MRAT ( A.R. 220/2004 ) while partly basing its decisions on the City's failure to produce certain evidence (of its co-efficients for its mass appraisal model). 6. Awarding a remedy that was neither requested nor discussed at the hearing. [ 10 ] The Board’s limited participation in the application concerns whether the proposed grounds of appeal raise a question of law or jurisdiction and, if so, the applicable standard of review for each proposed ground. IV. Analysis 1. The Fundamentals [ 11 ] These points are fundamental to applications for leave to appeal from the Board: a.

The onus rests with the applicant to establish the Three-Part Test; b. Any reasonably arguable point of law or jurisdiction must also be capable of affecting the result ( Globexx Properties Ltd. v. Edmonton (City) , 2011 ABQB 464 , at para 38 ); c. A breach of procedural fairness or the rules of natural justice is reviewable as a question of law ( Altus Group Ltd. v. Calgary (Composite Assessment Review Board ), 2011 ABQB 739 at paras 31 and 33 ; Keephills Aggregate Co. Ltd. v. Parkland (County of) Subdivision and Appeal Board , 2003 ABCA 242 ; and Russell Foods ); and d.

The principles governing the distinctions between a question of law and one of mixed fact and law are as described in Alberta (Worker's Compensation Board) v. Appeals Commission , 2005 ABCA 276 paras 15 to 22 : i. An incorrect statement of the legal standard, or test, or an application of incorrect factors in applying the law to the facts is an error of law. ii. Where there is a discretion involved in applying the law to the facts, the application of the discretion is not a question of law, but a question of mixed law and fact. iii.

However, if a wrong legal principle is used in the application of the law to the facts, or in the exercise of the discretion, there is an error of law.

e. As a specialized tribunal, the Board’s decisions are given deference for factual findings, exercise of discretion, questions ofpolicy, and for questions of law that call upon its expertise, including the

interpretation of its home statute (Dunsmuir v. NewBrunswick, 2008 SCC 9, [2008] 1 SCR 190, (paras 53 and 54). f. The Court may not grant leave to re-try questions of fact (Associated Developers Ltd, at paras 36-37, Masellis v. Edmonton(Subdivision and Development Appeal Board), 2011 ABCA 157 at para 28) nor is it to re-weigh the evidence or the Board'sconsiderations and substitute its findings on the relevant evidence and considerations (Simonelli v. Rocky View (Municipal District) No.44, 2004 ABQB 45 at para 72) g.

The Court of Appeal in a similar type of leave to appeal application of a Subdivision and Appeal Board decision has said that anappeal court will only interfere in discretionary decisions of a tribunal in limited circumstances: ... the tribunal “proceeded arbitrarily, or the decision is so clearly wrong as to amount to a failure of justice”; or where the judgeproceeded “arbitrarily, on a wrong principle, or on an erroneous view of facts”, or gave “no weight or insufficient weight to relevantconsiderations” (Keephills Aggregate Co.

Ltd. at para 37) In doing so, the Court relied on appellate decisions of discretionary judicial decisions by the Court below: Russell Food Equipment(Calgary) Ltd. v. Valleyview Investment Ltd (1962), (AB KB), 40 WWR 292 at para 7 (Alta SC); Willman v. Alberta(Motor Vehicle Accident Claims Act Administrator) (1979), 1979 ABCA 332 , 17 AR 608 (CA) ) h. An issue may be of sufficient importance to merit an appeal if it is important for jurisprudential purposes. The importance isdetermined on an objective scale.

Generally, there should be something unsettled about the question, or the decision should have wideranging implications (Associated Developers Ltd. v. Edmonton (City), 2011 ABQB 592 at para 42). i. Inadequacy of reasons for a decision does not constitute a stand alone ground of appeal. Rather, it goes to the reasonableness ofthe decision Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, at para 21,Calgary (City) v.

Alberta (Municipal Government Board), 2012 ABCA 13, at paras 14 to 16). [12] Here, I note the City’s contention that despite this limitation the Board’s reasons for decision are an important feature indetermining the leave application in relation to each individual error alleged both as it stands alone and collectively with other errorsalleged. [13] With that backdrop I turn to the specific grounds of appeal. 2.

Grounds 1-4 [14] The City contends that apart from being independent appealable errors, the errors alleged in these grounds of appeal whenconsidered alone or cumulatively establish breaches of the duty of fairness and the rules of natural justice which affect the outcome.

TheCity offers no authority for the proposition that multiple errors going to questions of fact (or indeed, questions of mixed law and fact)may constitute such breaches. [15] The Respondent property owners contend that the errors alleged concern the Board’s treatment of the evidence (or the lackthereof), what weight (if any) it chose to attach to certain evidence, its ultimate findings of fact, and the adequacy of its reasons fordecision concerning specific matters.

Viewed independently or collectively, they do not constitute questions of law or jurisdiction.Moreover, even if it were otherwise, the issues are peculiar to the present case and, as such cannot meet the requirement of sufficientimportance for granting leave to appeal. A. Accepting and rejecting identical or similar evidence in the same and related decisions

[16] The City references several alleged errors by the Board in this respect: i. The Board rejected a proposed comparable property (11511 - 27th Avenue) for Roll 10005215 as it had a high financing rate, butused it (as a comparable) to create its base GIM. I note that this property had been proposed as a good comparable by the City and hasthe second highest GIM used to calculate the base GIM. ii. The Board rejected a proposed comparable property (11405 - 27th Avenue) as it was subject to a vendor take back mortgage forRolls 1171008, 1173004, and 1174002, but used it to create its base GIM.

I note that the GIM for this property is the third highest GIMused to calculate the base GIM. [17] These concerns relate to the Board’s treatment of the evidence and the sufficiency of its reasons for decision. Neither areappealable questions of law or jurisdiction. They do not go to the process, but to fact finding. It is a mischaracterization to state that thesealleged errors constitute an error of law. Thus, this ground does not raise a question of law. [18] Moreover, while inclusion of the properties affected the outcome, it was the owners (who have chosen to not complain) thatwere negatively affected.

Finally, the error does not have any precedential value. Therefore, the decision is not objectively important. [19] As to whether there is a reasonable chance of success, assuming that one concluded that this was a question of law related tothe duty to be fair, as asserted by the City, the City has not identified on what basis there was a breach. It cannot be that it did not havenotice of the evidence in question. The property at 11511 - 27th Avenue was one of its comparables and it was aware of the issuessurrounding the property at 11405 - 27th Avenue.

The City has not identified the specific context or the specific breach of proceduralfairness, but merely submits that it was unfair to refuse to use the evidence for one purpose and then use it for another. The contents ofthe duty to be fair are variable Baker v. Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR 817(at para 21): The existence of a duty of fairness, however, does not determine what requirements will be applicable in a given set of circumstances. AsI wrote in Knight v.

Indian Head School Division No. 19, (SCC), [1990] 1 S.C.R. 653, at p. 682, “the concept ofprocedural fairness is eminently variable and its content is to be decided in the specific context of each case”. All of the circumstancesmust be considered in order to determine the content of the duty of procedural fairness... But, this question of rejecting evidence for one purpose and then using for another, is not a question of procedural fairness identified inthe jurisprudence, and therefore there is little likelihood of success. [20] Leave to appeal on this ground is dismissed. B.

Misinterpreting the Evidence [21] Central to this ground of appeal, and others in this category, is the treatment of the evidence contained in the Master File,which consisted of documents compiled and submitted in evidence by the City with CVG’s consent. [22] The City contends that the Master File documents were to be used only where there was common evidence and not where thematter before the Board was “a one-off”.

In response to the notion that once admitted, the evidence was available to the Board for allpurposes, the City says that this approach requires it to choose between either entering a Master File into evidence where there aremultiple files and some duplication, and as a result facing the possibility that a CARB will use the evidence as it sees fit in all theappeals, or not entering the Master File at all. If the latter, I do not think the City is facing such an “all or nothing” situation.

In fact, itcould specify on entering the Master File that the evidence is only entered for “purpose x” or for “appeal x” or that evidence “X” in theMaster File is not applicable to Appeal “A”, but applicable to Appeal “B”, “C” and “D”; it could also say as it deals with Appeal “B” thatthe Master File does not apply or that only certain parts of the Master File apply.

[ 23 ] The City cites these errors in each of the Board’s decisions: i. The Board rejected a row house comparable proffered by the City (501 Dunluce Road) because it was sold in 2005 and no time adjusted sale price was provided. In fact, the adjusted sale price was in evidence. The owners note that had it been included, the GIM would have increased to the City's benefit. ii. The Board viewed another row house sale as being valid for comparable purposes, but without comment did not use it in calculating the base GIM. Had it been included, the GIM would have increased to the City's benefit. iii.

The Board misquoted and misapplied the GIM for a property (11420- 60 Avenue), saying, without referencing a source, that it was 10.06 when the uncontroverted evidence was that it was 9.84. The City acknowledges that the 10.06 GIM was in its evidence, but its intention in doing so was to show discrepancies in the way two different sources, Anderson and the Network, calculated the GIM.

Further, the Board found these sources to be credible, but failed to address that their GIM calculation was based on different incomes - a feature which affects the GIM. [ 24 ] The City's proposition that these particular errors do not warrant deference as they go to issues of fairness is not supported by authority and does not withstand scrutiny. The alleged mistakes are about the Board's treatment of the evidence. The alleged errors are neither contrary to the wealth of the evidence nor made without any evidentiary basis.

These issues are not questions of law, but questions of fact. [ 25 ] In the absence of express limitations on its admissibility, of which there were none, the Board was entitled to rely on all of the documentation in the Master File in reaching its conclusions. [ 26 ] The consequence of the Board’s misquoting and misapplying the GIM for some of these properties benefited the City. In any event, these errors do not have precedential weight and would have had a minimal effect on the outcome.

Therefore, the issues are not of objective importance, even if they had raised a question of law. [ 27 ] The City suggests that because it is unknown what other inaccurate information may have been relied on by the CARB, or how these errors might have affected the final outcome, there is a reasonable chance of success. I cannot accept this submission, as it is nothing more than speculation. An applicant claiming a breach of procedural fairness must establish the breach, not speculate that it might have occurred.

Accordingly, even if the issues were found to be questions of procedural fairness, there would be no reasonable chance of success [ 28 ] Leave to appeal on this ground is dismissed. C. Relying on undisclosed evidence [ 29 ] The MRAT requires that parties disclose their documentary evidence, a

summary of their testimonial evidence (including a signed witness report for each witness) and any written argument upon which the party wishes to rely within certain timelines (s. 8(2)), failing which the Board may not hear the evidence (s. 9(2)). [ 30 ] The City contends first, that the Board heard undisclosed evidence for Roll 4243630 by referencing four properties advocated by CVG as comparables (properties that it had rejected for Roll 10005215), and that the City was consequently denied the opportunity to make representations about the propriety of considering this evidence.

This failing, urges the City, raises a question of law as the Board was interpreting s. 9(2) of the MRAT and also constitutes a breach of the duty of fairness. In another breath, the City says that

interpretation of a statute closely connected to the Board's functions is reviewed by the reasonableness standard, but since the Board did not address s. 9(2) of the MRAT it cannot be shown deference.

[31] First, I conclude that the Board was not interpreting s. 9(2) of the MRAT. The City cannot complain that the Boardmisinterpreted the Regulation, and then say because the reasons did not address the

interpretation, no deference is owed. The reasons didnot address the

interpretation of s. 9(2) because the Board did not interpret the section; it made a decision that it could consider theevidence because it was admitted into evidence through the Master File. The purpose of s. 9(2) is to ensure timely notice to the otherparty or parties, by the party leading the evidence, of the evidence it will rely on in the hearing.

The evidence in question was lead by theCity; it cannot now say that it did not have notice of the evidence. [32] The City complains that the incorporation of this evidence from other hearings into this hearing, without discussion of why itdid so, is a question of law. This raises the question of whether the decision (implied since there are no reasons doing so - see ATA) toconsider the Master File evidence in Roll 4243630 is a question of law or a question of mixed fact and law. Generally, questions aboutthe admissibility of evidence are questions of law (R. v. Fanjoy, (SCC), [1985] 2 SCR 233 at para 9).

However, in myview, this is a question of mixed fact and law: a question of whether the facts satisfy the legal tests (Canada (Director of Investigationand Research) v. Southam Inc, (SCC), [1997] 1 SCR 748 at para 35). [33] In this context, the City entered the Master File in evidence without qualification. The Board determined that the Master Fileevidence was admissible in all of the appeals.

This involved a determination of whether the evidence was lead in all the appeals, aquestion of fact. [34] However, if this is a question of law, I would have concluded that there would be little likelihood of success on appeal. I notefirst that the standard of review of would likely be reasonableness. While the admission of evidence is a question of general law, thequestion of the use to be made of evidence presented in a Master File is within the Board’s specialized area of expertise: see Dunsmuir(at para 60) and ATA (at para 32). [35] The Supreme Court of Canada in Nor-Man Regional Health Authority Inc. v.

Manitoba Association of Health CareProfessionals, 2011 SCC 59 held that an expert tribunal, like a labour arbitrator, “may properly develop doctrines and fashion remediesappropriate in their field, drawing inspiration from general legal principles, the objectives and purposes of the statutory scheme, theprinciples of labour relations, the nature of the collective bargaining process, and the factual matrix of the grievances of which they areseized.” (at para 45).

Similarly, a CARB may also be granted deference in developing doctrines and policies to deal with a questionwithin its expertise, like the admissibility, use, and application of evidence dealing with such things as ‘comparables’ and GIMs, in thesituation where there are multiple assessment appeals with virtually identical evidence. [36] The evidence in question was before the Board, and was therefore disclosed.

This was a reasonable decision given the City’ssubmissions before the Board that there would be a lot of “carry forward” of evidence because there would be “lots of duplication”(Transcript, p. 12, ll. 10-20). [37] Moreover, this question is not one of sufficient importance to merit an appeal. It is confined to the specific circumstances ofthis case in which the parties agreed to a common book of evidence and the City indicated that the evidence would “carry forward” intothe other appeals.

In future, as a matter of best practice, the City may choose to specify what evidence in a common book of evidence isapplicable to all, or some specific portion, of appeals, or it will identify that certain evidence is relevant only to a specific appeal orappeals.

A decision on this ground would not be precedential. [38] Finally, the Board’s failure to discuss its treatment of this evidence in its reasons may go to the adequacy of reasons, but as theSupreme Court of Canada in Newfoundland Nurses held, adequacy of reasons is not a free-standing ground of appeal or judicial review(at para 22): It is true that the breach of a duty of procedural fairness is an error in law. Where there are no reasons in circumstances where they arerequired, there is nothing to review. But where, as here, there are reasons, there is no such breach.

Any challenge to the reasoning/resultof the decision should therefore be made within the reasonableness analysis. [39] The second instance complained of by the City concerns the Board’s acknowledgement of the spread of GIMs calculated bythe City of Edmonton amongst all 30 properties under appeal. The Board then used the lowest GIM to value all the properties, withoutexplaining the relevance of all the GIMs of the properties under appeal and without considering other properties not under appeal.

[40] This is an assessment of evidence, and therefore not a question of fact. [41] Leave to appeal on this ground is dismissed. D. Ignoring Evidence [42] The City’s several complaints under this ground of appeal are: i. The Board's reasons are insufficient to ascertain what, if any, weight the Board gave to the effect of the age of a property on theGIM. ii.

The Board did not discuss (adequately) the dispute concerning reliance on the GIMs provided by Network, a reporting servicerelied on by CVG, which varied from another reporting service's GIM's (Anderson Data OnLine) submitted by the City, and did notexplain why it accepted Network's GIM. iii.

The Board did not discuss (adequately) uncontradicted evidence concerning the impact of different income levels on a GIM orthe City's evidence of the impact of certain sales on the GIM derived by Anderson and Network, as well as how the City calculated aGIM for those same sales. [43] The City argues that ignoring relevant considerations and making findings of fact in the face of overwhelming oruncontradicted evidence raises a question of law and of fairness going to the tribunal’s jurisdiction. In support of this position, the Cityrelies on the decision in Shooters Sports Bar Inc. v.

Ontario (Alcohol and Gaming Commission) (2008), (ONSCDC), 238 O.A.C. 9 (Ont SCJ) which is grounded on the Supreme Court of Canada decision in Southam (at para 41). In Southam, theCourt said that ignoring evidence that the law requires a tribunal to consider is an error of law. There is no suggestion here that there wassome legal test that compelled consideration of these questions, and the Southam test is not relevant. [44] The City also relies on the decision in Willman v.

Alberta (Motor Vehicle Accident Claims Act Administrator) (1979), 1979ABCA 332 , 17 AR 608 (CA) in which the Court said: That this court will not interfere with the exercise of judicial discretion unless it is based on wrong principles or unless it is wrongful inthat no weight or no sufficient weight has been given to relevant consideration is well established. [45] Nothing in Willman suggests that ignoring relevant considerations or evidence is either a question of law or fairness.

Willmansays that the Court on appeal will only interfere with an exercise of judicial discretion by the court below if no or insufficient weight wasgiven to relevant considerations. [46] The issues set out in the City’s complaints in items ii and iii above centre on the reliability of GIM calculations. Two reportingservices, Network and Anderson, provided information about the levels of income in the properties in question. These income levelswere used to derive the GIMs. Changing the level of income changes the GIM, and a GIM derived at one level of income cannot beapplied to a different level of income.

The evidence before the Board included: ∙ GIMs from three different sources: Network, Anderson and the City; GIMs change based on income; ∙ If GIMs are different it would be because the income levels relied on were different; ∙ GIMs were not consistent between Anderson and Network; and

∙ No one could say that the City applied the same market income level as Anderson and Network. [47] The Board’s reasons suggest that the City argued that CVG’s reliance on Network information was unreliable. The City saysthat this misunderstands its argument before the Board, which was that one cannot use a Network GIM with a City income level. Further,the City argues that the Board’s reasons did not address the conflict in evidence among the GIMs provided by the three sources for eachof the seven sales.

The City further suggests that the Board gave no weight (or did not explain the weight it did give) to the evidence thatGIMs change based on the income levels used to derive the GIM. [48] The City also notes that there was a dispute at the hearing about how much the age of a property affected its GIM. The Citysays that both parties agreed that the property’s age affected the GIM, but disputed how much of an affect that age had.

The Board didnot provide any reasons as to whether the age of the property affected its decision; the City says there is no way to ascertain from thereasons whether the Board gave any weight to the properties’ age in reaching its decision. [49] These complaints are about the adequacy of the Board’s reasons for decision. They are not stand alone grounds for appeal.The existence of several complaints in that regard does not change that proposition in an application of this nature.

The Supreme Court ofCanada in Newfoundland Nurses noted (at para 16): Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would havepreferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis. A decision-maker isnot required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion (ServiceEmployees' International Union, Local No. 333 v. Nipawin District Staff Nurses Assn., (SCC), [1975] 1 S.C.R. 382,at p. 391).

In other words, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it todetermine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met. [Emphasis added] [50] Thus the adequacy of reasons is only one factor in determining whether a decision is reasonable. It is not a question of law. [51] These issues are better characterized as errors of fact.

In Altus Group Ltd., the applicant for leave argued that the Board hadbreached the rules of natural justice and procedural fairness by ignoring or failing to give appropriate weight to certain evidence. This isthe Court's response (at para.30): This is akin to arguing that the applicant did not like the result, or a credibility finding, or how the board accepted or rejected theevidence of various experts or witnesses.

The weight given to evidence, which has been heard and analyzed by a tribunal, is clearly not aquestion of law. [52] Finally, even if these grounds could be characterized as questions of law, the complaints are specific to these appeals. TheCity argues that the ability of the CARB to ignore relevant considerations or overwhelming testimony goes to the heart of fairness in thesystem. I disagree; these issues do not raise questions of broader and objective importance. [53] Leave to appeal on these grounds is denied. E. Ignoring

Section 27.3 of the MRAT and partly basing the decision on the City's failure to produce coefficients of its massappraisal model [54] The Board questioned a City witness about the basis for a calculation, and the City’s counsel argued that the Board wasasking for the City’s (mass appraisal model) coefficients, which it was not required to disclose by virtue of

Section 27.3 of the MRAT.That

section provides:

27.3(1)For the purposes of sections 299(1.1)(

b) and 300(1.1)(

d) of the Act, the key factors and variables of the valuation model applied in preparing the assessment of a property include: (

a) descriptors and codes for variables used in the valuation model; (

b) where there is a range of descriptors or codes for a variable, the range and what descriptor and code was applied to the property; and (

c) any adjustments that were made outside the value of the variables used in the valuation model that affect the assessment of the property.

(2) Despite subsection (1), information that is required to be provided under

section 299 or 300 of the Act does not include coefficients . [Emphasis added] [ 55 ] In its reasons for decision, the Board said (at 8-9): …The Board requested information from the Respondent on several occasions as to which comparables or coefficients of value were used to calculate the GIM used in the City of Edmonton assessment(s). There was no evidence presented to the Board by the Respondent to show how the GIM's were calculated so as to determine the rationale behind the GIM calculation.

The board had no alternative but to determine that the values were somewhat subjective. [ 56 ] The City asserts this passage shows that the Board misinterpreted s. 27.3 of the MRAT and breached the rules of natural justice and the duty of fairness. [ 57 ] The Board could have asked more questions and required further information pursuant to s. 465 of the MGA , but want of information concerning the coefficients was but one factor that the Board considered in reaching its conclusions as evidenced by these passages (at 8-9): …As the Board was not provided with evidence supporting the GIM used by the City to calculate the assessment(s), the Board concluded that the City must have extracted information from other property sales (low rise, multifamily etc.) in the City of Edmonton in order to arrive at a final GIM for the subject property(s). …The Board found that the City of Edmonton did not put much weight on the operating costs of multi-residential property, which as a result can have an effect of distorting the City's calculation of the GIM. ...Both the Complainant and Respondent agreed that valid row house sales were not available, so it was determined that the City’s GIM must have been derived from low rise apartment sales and/or other similar multi-residential properties. ...Due to the foregoing deficiencies, the Board’s decision is based on the only evidence which is the sales comparables brought forward by the Complainant and Respondent. [ 58 ] The Board was not interpreting s. 27.3 of the MRAT .

The lack of information about the coefficients is discussed as but one of several reasons why it rejected the City’s GIM. The Board was entitled to weigh and comment on the evidence. Even if it was wrong in

failing to press for more information, this ground would not, given the Board's reasons for its conclusions, affect the outcome. [ 59 ] Leave to appeal on these grounds is denied. F. Remedy [ 60 ] The City contends that the remedy awarded by the Board was to rely on a GIM formula that was neither requested nor spoken to. This, urges the City, created a new “model” to value groups of properties that it was unable to address.

In contrast, the owner's contend that the Board did exactly what it was asked to do by the owners in their complaint – reduce the assessment and apply a GIM different from that used by the City. That the Board chose to employ a GIM formula that differed from what the owners proposed is, they say, irrelevant. [ 61 ]

Section 467 of the MGA charges the Board with the duty to uphold the assessment or change it. There is no requirement that it select a particular method advocated by a party for doing so. That said, it cannot exceed its jurisdiction in making an award or award a remedy that was neither discussed nor requested. Such was the case in Ag Pro Grain Management Services Ltd. et al v. Lacombe County et al , 2006 ABQB 351 where the tribunal increased the assessment on its own motion, the effective result being to grant a non-existent cross-appeal.

Similarly, the Board cannot exceed its jurisdiction by awarding a remedy that it had no authority to grant, as was the case in Business Watch International Inc. v. Alberta (Information and Privacy Commissioner), 2009 ABQB 10 . There, the tribunal both exceeded its jurisdiction and did so without consultation with the parties. As Veit J. observed (at para. 105 ): Moreover, the Commissioner was itself in breach of principles of natural justice by devising a remedy of its own without consultation with the parties.

As Jones and de Villars put it in their text of administrative law: ... there is, as a general common law principle, a duty of procedural fairness lying on every public authority making an administrative decision which is not of a legislative nature and which affects the rights, privileges, or interests of an individual. [ 62 ] Here, the remedy awarded was within the Board's jurisdiction. That it chose to employ a formula different than that proposed by the City or the owners was part of its evaluation of the evidence.

That is not the same thing as granting a remedy that was not requested. [ 63 ] While a more detailed explanation in the Decisions would aid in better understanding the Board's reasons for its approach, the sufficiency of the reasons is not a stand alone ground of appeal. Importantly, it does not translate into a matter of procedural fairness. [ 64 ] Leave to appeal on this grounds is denied V. Conclusion [ 65 ] The City’s application for leave to appeal is dismissed. The parties may speak to costs within 30 days of this decision. Heard on the 2 nd day of February, 2012.

Dated at Edmonton, Alberta this 12 th day of March, 2012.

J.E. Topolniski J.C.Q.B.A. Appearances: Cameron J. Ashmore City of Edmonton for the Applicant Janice A. Agrios, Q.C. Kennedy Agrios LLP for the Respondents Darin S. McKinley Emery Jamieson LLP for the City of Edmonton Composite Assessment Review Board