Calgary (City) v. Manyluk, 2012 ABQB 178

Court of Queen ’ s Bench of Alberta Citation: Calgary (City) v. Manyluk, 2012 ABQB 178 Date: 20120320 Docket: 1101 12156 Registry: Calgary Between: City of Calgary Applicant - and - William H. Manyluk Respondent Editorial Notice: On behalf of the Government of Alberta personal data identifiers have been removed from this unofficial electronic version of the judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice C.M Jones _______________________________________________________ I. Introduction [ 1 ] The Respondent, Mr.

Manyluk, has resided at [...] - 12 Street S.W. in the city of Calgary (the “Property”) since 1985. He has, for much of that period, challenged his annual property tax assessment. In furtherance of his challenges, he has pursued the various avenues of appeal statutorily available to property owners who take issue with their assessments (the “Assessment Tribunals”). Results at the Assessment Tribunal level have led him to commence six actions in this Court. His experiences before this Court have lead him to advance two appeals before the Court of Appeal of Alberta.

The city of Calgary (the “City”) has been a party to all such proceedings. II. The City’s Application

[ 2 ] The City asserts that Mr. Manyluk has acted inappropriately. It argues that his actions, both at the Assessment Tribunal level and before the courts, warrant this Court invoking

Part 2.1 of the Judicature Act RSA 2000, c. J-2 (“ Judicature Act ”) which deals with vexatious proceedings. Specifically, the City seeks an Order: 1. prohibiting Mr. Manyluk from: (

a) instituting further proceedings against the City without leave of the Court; (

b) instituting further proceedings on behalf of another person without leave of the Court; (

c) continuing action 1101-12156 (an action commenced by Mr. Manyluk but, as yet, not proceeded with, in respect of a challenge to his 2011 property tax assessment) without leave of the Court; and (

d) continuing his appeals of two actions heard and dismissed by this Court, before the Court of Appeal of Alberta without leave of the Court; 2. prohibiting Mr. Manyluk from instituting proceedings at the Assessment Review Board, without leave of the Court; 3. directing that any Order granted by this Court be binding on the Court of Queen’s Bench of Alberta and the Court of Appeal of Alberta; 4. dismissing action 0901-17324 (an action commenced by Mr. Manyluk but, as yet, not proceeded with, in respect of a challenge to his 2008 property tax assessment); 5. requiring that any application by Mr.

Manyluk to commence or continue an action or proceeding against the City be made on at least ten day’s notice to the City’s Law Department; 6. requiring that any application by Mr. Manyluk to commence or appeal any action or proceeding be accompanied by an affidavit: (

a) to which is attached: (

i) a copy of any Order made by this Court pursuant to

Part 2.1 of the Judicature Act (the provisions of

Part 2.1 collectively referred to in the balance of this judgment as “Part 2.1”); and (ii) a copy of any pleading or process Mr. Manyluk proposes to issue or file; and (

b) deposing fully and completely to the facts and circumstances surrounding the proposed claim or proceeding so as to demonstrate that the proceeding is not an abuse of process and is advanced on reasonable grounds; 7. directing that any Order made by this Court pursuant to

Part 2.1 be placed on the following files in the: (

a) Court of Queen’s Bench of Alberta: (i) 0201-18184; (ii) 0701-10233; (iii) 0901-11051;

(iv) 0901-11052; and (v) 0901-17324; (

b) Court of Appeal of Alberta: (i) 1101-0258 - AC; and (ii) 1101-0259 - AC; 8. costs [ 3 ] Mr. Manyluk, who is self-represented, opposes the City’s application. III. The Judicature Act [ 4 ] Vexatious proceedings are governed, in part, by

Part 2.1 of the Judicature Act .

Part 2.1 was added in 2007. Prior to amendments in 2007 (the “2007 Amendments”), s. 23 of the Judicature Act provided as follows: Vexatious proceedings 23(1) When, on an application made by way of originating notice with the consent in writing of the Minister of Justice and Attorney General of Alberta, the Court is satisfied that a person has habitually and persistently and without any reasonable ground instituted vexatious legal proceedings in the Court or in any other court against the same person or against different persons, the Court may order that no legal proceedings shall, without leave of the Court, be instituted in any court by the person taking those vexatious legal proceedings.

(2) Leave shall not be given under subsection (1) unless the Court is satisfied that the proceedings are not an abuse of the process of the court and that there is on its face ground for the proceedings.

(3) The Minister of Justice and Attorney General of Alberta has the right to appear and be heard in person or by counsel on an application under subsection (1). [ 5 ] Impetus for the 2007 Amendments, set forth below, may lie in the final report of the Law Reform Commission of Nova Scotia, April 2006 (the “NSLRC 2006 Report”). The 2007 Amendments appear to incorporate many of the recommendations contained in the NSLRC 2006 Report.

Indeed, the comments in Hansard offered by the then Minister of Justice and Attorney General for Alberta, Ron Stevens, at the time the 2007 Amendments received second reading, are informative. He noted that: In June 2006 the Court of Queen’s Bench suggested that Alberta Justice consider the recommendations contained in a report on how to deal with vexatious litigants. The report was authored by the Law Reform Commission of Nova Scotia.

Working with those recommendations, Alberta Justice consulted three courts, the legal profession, and non-government organizations in September 2006 on proposed amendments to the Judicature Act . With valuable comments and input received from the courts and other stakeholders during the consultation, Alberta Justice proposed amendments to the vexatious litigants provision in this act. The Judicature Act deals with the jurisdiction and powers of the Court of Queen’s Bench and the Court of Appeal of Alberta.

It also deals with the administration of justice in the province, including some matters of the Provincial Court of Alberta. Amendments to this act will give these three courts more powers to deal with applications concerning vexatious litigants. [ 6 ] Currently, the Judicature Act provides as follows in

Part 2.1 - Vexatious Proceedings:

Definitions 23(1) In this Part, (a) “clerk of the Court” means (

i) in the case of the Court of Appeal, the Registrar or Deputy Registrar of the Court, (ii) in the case of the Court of Queen’s Bench, a clerk, deputy clerk or acting clerk of the court of the judicial centre in which the proceeding is being instituted, and (iii) in the case of the Provincial Court, a clerk or deputy clerk of the Court; (b) “Court” means (

i) the Court of Appeal, (ii) the Court of Queen’s Bench, or (iii) the Provincial Court.

(2) For the purposes of this Part, instituting vexatious proceedings or conducting a proceeding in a vexatious manner includes, without limitation, any one or more of the following: (

a) persistently bringing proceedings to determine an issue that has already been determined by a court of competent jurisdiction; (

b) persistently bringing proceedings that cannot succeed or that have no reasonable expectation of providing relief; (

c) persistently bringing proceedings for improper purposes; (

d) persistently using previously raised grounds and issues in subsequent proceedings inappropriately; (

e) persistently failing to pay the costs of unsuccessful proceedings on the part of the person who commenced those proceedings; (

f) persistently taking unsuccessful appeals from judicial decisions; (

g) persistently engaging in inappropriate courtroom behaviour. Application 23.1(1) Where on application or on its own motion, with notice to the Minister of Justice and Attorney General, a Court is satisfied that a person is instituting vexatious proceedings in the Court or is conducting a proceeding in a vexatious manner, the Court may order that (

a) the person shall not institute a further proceeding or institute proceedings on behalf of any other person, or (

b) a proceeding instituted by the person may not be continued, without leave of the Court.

(2) An application under subsection (1) may be made by a party against whom vexatious proceedings are being instituted or conducted, a clerk of the Court or the Minister of Justice and Attorney General or, with leave of the Court, any other person.

(3) The Minister of Justice and Attorney General of Alberta has the right to appear and be heard in person or by counsel on an application or a Court’s motion under subsection (1) or (4).

(4) The Court may at any time on application or on its own motion, with notice to the Minister of Justice and Attorney General, make an order under subsection (1) applicable to any other individual or entity specified by the Court who in the opinion of the Court is associated with the person against whom an order under subsection (1) is made.

(5) An order under subsection (1) or (4) may not be made against a member of The Law Society of Alberta or a person authorized under

section 48 of the Legal Profession Act when acting as legal counsel for another person.

(6) Subject to the right to appeal an order made under subsection (1) or (4), the Court of Appeal or the Court of Queen’s Bench may make an order made under subsection (1) or (4) binding on any one or more of the other Courts referred to in section 23(1)(b), but an order under subsection (1) or (4) made by the Provincial Court is binding only on that Court.

(7) A person against whom an order has been made under subsection (1) or (4) may apply to a Court for leave to institute or continue a proceeding in that Court and the Court may, subject to any terms or conditions it may impose, grant leave if it is satisfied that the proceeding is not an abuse of process and that there are reasonable grounds for the proceeding.

(8) With respect to an application under this

section before the Court of Appeal, the matter may be heard by a single justice.

(9) Nothing in this

section limits the authority of a Court to stay or dismiss a proceeding as an abuse of process or on any other ground. [ 7 ]

Section 23.1(1) requires that notice of any application under

Part 2.1 be given to the Minister of Justice and Attorney General of Alberta. At the hearing of this matter the City produced a letter from the office of the Minister of Justice and Attorney General confirming receipt of the City’s application and advising that the Minister/Attorney General would not be appearing. IV. Background [ 8 ] Mr. Manyluk has, since 1985, challenged many of his annual property tax assessments.

For those taxation years in respect of which he has launched a challenge, he has typically pursued all avenues of appeal before various Assessment Tribunals available to him under existing legislation. Since 2003, he has actively pursued opportunities for judicial review before this Court. A. History of Challenges Before Assessment Tribunals [ 9 ] Mr. Manyluk’s concerns with the City’s property tax assessment protocols and methods appear to have commenced with the 1987 taxation year.

He took issue with the 1987 assessment, believing the value placed on the Property to be significantly higher than it should have been. His challenge was partially successful. [ 10 ] The City initially asserted that he had appealed his assessment every year since 1987, with the exception of the 2003 and 2010 taxation years [Para. 3 of the Affidavit of Kelly Hess sworn November 27, 2011 (the “Hess Affidavit”)]. Mr.

Manyluk challenged the City’s assertions, claiming that, in addition to the 2003 and 2010 taxation years, he did not appeal his assessments for the 1991, 1996, 1997 and 1998 taxation years [Para. 1 of the Affidavit of William H. Manyluk sworn December 8, 2011 (the “Manyluk Affidavit”)]. In its brief, the City expressed qualified acceptance of Mr. Manyluk’s recollections in that regard. Assuming Mr.

Manyluk’s recollections are accurate, he has appealed his annual assessment in all but six of the last 24 years. [ 11 ] Calgarians have been subject to three different property tax assessment appeal protocols throughout the 24-year period during which Mr. Manyluk has challenged his property assessments. In

summary form, those protocols, and the various Assessment Tribunals engaged, were as follows.

1. 1988 to 1994 Initially, property owners were permitted to raise concerns with an assessor. If no resolution followed, they could file a complaint with the Court of Revision (“COR”), but were required to give notice to the assessor. If they were not satisfied with the COR’s decision, they were permitted to appeal to the Alberta Assessment Appeal Board (“AAAB”). 2. 1995 to 2009 Initially, property owners were permitted to raise concerns with an assessor. If no resolution followed, they could file a complaint with the Assessment Review Board (“ARB”).

If they were not satisfied with the ARB’s decision, they were permitted to appeal to the Municipal Government Board (“MGB”). Throughout this period, it was also possible to seek a re-hearing of an earlier MGB decision for the assessment years in question. 3. From and after 2010 Initially, property owners continue to be permitted to raise concerns with an assessor. If no resolution results, property owners may appeal their assessment to the Calgary Assessment Review Board (“CARB”). No appeal may be taken from the CARB’s decision, except on questions of law or jurisdiction.

However, an action for judicial review may be brought before this Court. [ 12 ] In respect of taxation years in which he objected to his initial assessment, Mr. Manyluk has consistently availed himself of all available opportunities for further appeal in accordance with the above protocols. B. Grounds for Appeal to Assessment Tribunals [ 13 ] At the Assessment Tribunal level, Mr. Manyluk has consistently taken issue with his property tax assessments on two primary grounds.

First, he believes that the Property is subject to high traffic influences and that the assessment process fails to account properly for the suppressing effect of those influences. Second, he believes that his house is in need of maintenance and upkeep and that the suppressing effect of deferred maintenance expense has not been properly accounted for. [ 14 ] The City submitted a volume entitled “Manyluk Decisions Municipal Government Board 1999 to 2011” (“MGB Decisions 1999-2011”).

A review of this volume discloses that the ARB and MGB believed that the City’s assessment protocol took these factors into account and that, for the most part, contrary evidence submitted by Mr. Manyluk was not persuasive. [ 15 ] On appeal from the decisions of the ARB to the MGB, Mr.

Manyluk would typically raise one or more of the following issues: 1. failure to consider relevant legal authority; 2. failure to consider relevant evidence and arguments; 3. reasonable apprehension of bias; 4. procedural defects; 5. insufficient disclosure; 6. loss of jurisdiction; 7. failure to apply correct standard of proof; and 8. lack of expertise and bias of the MGB.

C. Results of Assessment Challenges 1.

The Early Years [ 16 ] The Hess Affidavit deposes at para. 30 that: Since the inceptions of Manyluk’s administrative and other litigation with The City, Manyluk was marginally successful on 2 occasions in reducing his building assessment (in 1987 and 1994) but has never been successful in appealing his land assessment at a time when legislation required land and buildings to be independently assessed. [ 17 ] However, this assertion is contradicted by the following exhibits to the Manyluk Affidavit, which confirm that he enjoyed some success in earlier taxation years: Exhibit “B” (1987 taxation year) reduction in land value from $70,600 to $49,780 Exhibit “C” (1988 taxation year) reduction in land value from $49,730 to $43,510; reduction in value of building from $66,480 to $52,370 (1989 taxation year) reduction in land value from $54,970 to $48,350 (1994 taxation year) reduction in building value from $104,500 to $100,000 Exhibit “E” (1989 taxation year appeal to the AAAB from the Court of Revision) reduction in land value from $48,350 to $46,000; reduction in value of buildings from $52,660 to $49,500 (1990 taxation year) reduction in value of building from $52,660 to $47,340 (1992 taxation year) reduction in value of building from $49,500 to $47,340 Exhibit “H” (1999 taxation year) reduction in combined land/building assessment from $401,500 to $305,500 2.

Latter Years [ 18 ] However, Mr. Manyluk enjoyed very little success in his appeals to various Assessment Tribunals from 1999-2011. Exhibit “B” to the Hess Affidavit chronicles Mr. Manyluk’s lack of success during this period. That Exhibit does not, however, tell the whole story. [ 19 ] A review of the decisions and reasons of the various Assessment Tribunals over this period, contained in MGB Decisions

1999-2011, discloses a recurring theme, as illustrated by the following excerpts: 1. The Board finds the Appellant’s evidence not substantive enough to upset the judgment call of the Assessor coupled with the Review Board Adjustment. (MGB Board order 34, November 17, 1995) 2. The Respondent [City] is not required to answer questions 4, 7 and 14 [posed by Mr. Manyluk]. Further, the Board will not direct the Respondent to answer question 15, even though the Respondent has not declined to do so ... It is appropriate to characterize this question [from Mr.

Manyluk to the City regarding the existence of a legal opinion on disclosure obligations under s. 299 of the MGA] as in the order of a “fishing expedition”... (MGB Board order: MGB 229/00, November 24, 2000) 3. To support this contention [that the City’s assessments were incorrect], the Appellant [Mr. Manyluk] relied on arbitrary and subjective adjustments to unsupported sales data. ... It is apparent to the MGB that the Appellant first reached a conclusion and then attempted to force the data to support that conclusion. (MGB Board order MGB 134/01, October 11, 2001) 4.

The two grounds raised by the Applicant [Mr. Manyluk] were that the decision was patently unreasonable and that there were procedural defects. ... The review panel is convinced that the Applicant’s request for a rehearing/review is nothing more than a disagreement with the

interpretation of the facts on which the decision in Board Order MGB 134/01 is based. ... There is no indication from the Applicant’s submissions that the MGB had improperly made a decision that had erred in following proper procedure, or that a procedural defect had occurred. Furthermore, the review panel found nothing in the Applicant’s submission that would affect the evidence considered or would change the outcome of the case. (MGB Board order 053/02, May 3, 2002) 5.

The calculations and resulting estimates of an indicated market value of the subject property, suggested by the Appellant represent a wide range in potential values. It is interesting to note that the Appellant has been reluctant to provide the MGB with clear conclusion with respect to the end result of the numerous calculations presented during this appeal. (MGB Board order: MGB 008/03, January 20, 2003) 6. The review panel also considered the Applicant’s arguments that the MGB did not fulfill its duty to natural justice by refusing to order the disclosure of information by the Respondent.

It is clear from a reading of the Order that the request by the Applicant for the MGB to order the disclosure was considered and based on the evidence; the appeal panel did not find the information to be necessary. ... The MGB is not prepared to proceed with the rehearing/review process, as it is clear to this panel that the grounds for application are based solely on a disagreement with the decision. (MGB Board order: MGB 036/03, March 10, 2003) 7. The MGB understands the argument the Appellant attempted to make, however, this analysis is flawed for a number of reasons. ...

The MGB did not find the Appellant’s evidence and arguments to be compelling because of the numerous non-validated assumptions involved. (MGB Notice of Decision No DL 143/04, December 31, 2004) 8. In making this determination, the MGB found that the Applicant [Mr. Manyluk] was unable to provide sufficient basis to substantiate a single allegation in the numerous grounds for rehearing put forth in the request.

The review panel gave consideration as to whether it would be helpful to instruct the original panel to expand its decision letter into a full board order, however, came to the conclusion based on the arguments of the request for review that no increase in the length of any decision would satisfy the Applicant. ... The Applicant in this case has appeared before the MGB on numerous occasions, even taking an appeal from a previous year to the Court of Queen’s Bench. On no occasion has the Applicant’s arguments and, or allegations succeeded. (MGB Board order: MGB 027/05, March 7, 2005) 9.

Prior to and during the hearing, the Appellant spent considerable time and effort on the preliminary issues of exchange and disclosure. In the end, the exchange was largely a non-issue. Furthermore, the preliminary issue of disclosure had been dealt with previously by the MGB as well as the courts and therefore was an unnecessary imposition on everyone’s time. ... As far as the Appellant’s actual evidence was concerned, much of it was dated and not particularly relevant in assisting the MGB in determining if the assessment was incorrect. ...

If the Appellant continues to believe that the subject property is over-assessed, perhaps, as the Honourable Mr. Justice Martin suggested having a professional appraisal completed would be advisable. (MGB Notice of Decision No. DL165/05, November 21, 2005)

10. The MGB is still not convinced that an exhausting probe into the derivative of each additive or multiplicative factor employed in the process of determining the subject’s assessment is necessary. The process is not under appeal; the result of the process is what is being appealed. ... Thus, the MGB concludes that the level of disclosure provided by the Respondent [City] was reasonable for this type of property and any reasonable person could draw conclusions from this information as to whether or not the assessment represented market value and was or was not equitable with similar properties. ...

The MGB notes that specific instructions were given by the Court in Justice Martin’s decision to the possibility of acquiring an independent appraisal of the subject property. This was also reinforced in the MGB’s decision for the 2005 appeal (DL165/05). The Appellant has chosen to ignore both the Court’s and the MGB’s advice and continues to pursue the same line of argument as put forward in previous years, thus the previous decisions are relevant to the current proceedings. (MGB Notice of Decision No. DL013/07, February 15, 2007) 11.

On the face of the record, is there some substance to the Applicant’s allegations such that further inquiry is warranted? ... It is not the assessment model, but its result, that is under appeal. (MGB Board order: MGB 056/07, April 18, 2007) 12. The Appellant contends that the Respondent failed to give adequate consideration to the condition of the property and the negative impact of traffic when preparing the assessment. The assessed value of the property, he argues, is neither reflective of market value nor equitable. Mr.

Manyluk has appealed his assessment in previous years, raising many very similar arguments. ... If the person suggests their property is one of “the outliers” and overvalued, then they cannot prove it by dissecting, criticizing, or reconstructing the data model; they can only prove it by comparing their property to similar properties using accepted appraisal and valuation techniques, of which there are several.

Not only is it prohibitively time consuming before and during an appeal to dissect these mass appraisal models, such an exercise simply fails, at the end of the day, to provide an answer to the issues on appeal in the individual case. ... The Appellant sought to dissect and critique the mass appraisal model, an endeavour ultimately unpersuasive in respect to the issues on appeal. It is the result of the assessment that is in issue. (MGB Notice of Decision No. DL 111/08, October 30, 2008) 13. DL 111/08 gave extensive reasons for its findings and conclusions. An examination of Mr.

Manyluk’s request for review reveals that he merely disagrees with the decision in DL 111/08 and is attempting to reargue his case ... The Applicant’s request for a review of Decision Letter DL 111/08 is denied. (MGB Board order: MGB 015/09, February 3, 2009) 14. The Appellant [Mr. Manyluk] is not the owner of the subject property but launched an assessment complaint without the authorization of the owners and against their wishes. [Emphasis added.] ... The Appellant did not have a valid complaint before the ARB. (MGB Board order: MGB 046/08, April 24, 2008) 15. The only reasonable inference from Mr.

Manyluk’s stated reasons for pursuing this appeal, is that he feels this property is sufficiently proximate and comparable to his own that, if he can get its assessment reduced, his own will receive more favourable consideration for a reduction. ... Is such an interest sufficient? In the MGB’s view it is not. Anything that might be said about the appropriateness of a neighbour’s assessment and its influence, if any, on one’s own property, can be said in the context of an appeal on one’s own property. ...

Section 504 is discretionary. Even though the MGB’s reasons for originally rejecting Mr. Manyluk’s appeal were based on law that has since been modified, the MGB is not convinced this would have altered the end result. The

section 504 request is denied. (MGB Board order: MGB 038/09, April 14, 2009) 16. Mr. Manyluk and others who repeatedly advance virtually similar arguments before the MGB year after year should appreciate that such submissions do not improve with age, and can be expected to be dealt with summarily. ... Absent demonstrable change, appellants who simply repeat evidence and argument each year in the hope of a different result are likely to be disappointed. There comes a point at which, as the Court suggested to Mr.

Manyluk in that case, where such repeated submission and challenges became an abuse of process, something the Municipal Government Act appeal system is not designed to foster. (MGB Notice of Decision No. DL 001/09, January 19, 2009) 17. He [Mr. Manyluk] also referred to MGB comments about Mr. Justice Martin’s decision where it was suggested that the Applicant should hire an appraiser to do a certified appraisal. The Applicant appeared to be expressing his disagreement with the MGB’s reasoning in this regard rather than alleging that a procedural error took place.

Disagreement with a decision is not a ground for reconsideration. ... The Applicant has failed to establish any grounds upon which a review of DL 001/09 could be granted and no further inquiry is warranted. (MGB Board order: MGB 048/09, May 27, 2009) 18. As has been said in previous Board Orders and Decision Letters, the MGB takes the view that it is the result of the assessment process that is under appeal in this hearing, not the assessment process itself. Thus, in Decision Letter DL 013/07, the MGB indicated as follows.

The MGB is satisfied that the Respondent [City] made it clear to the Appellant that it does not provide working papers as to the valuation models or adjustments but it does provide sales and the sales summaries to demonstrate whether or not the assessment is a reasonable estimate of market value. From the volume of evidence provided by the Appellant, the majority of which are copies of material provided by or garnered from the Respondent, the MGB is satisfied that the Appellant has been given access to the assessment/sales information for numerous years.

Thus, the MGB concludes that the level of disclosure provided by the Respondent was reasonable for this type of property and any reasonable person could draw conclusions from this information as to whether or not the assessment represented market value and was or was not equitable with similar properties. After considering the evidence and testimony offered in this appeal hearing, the MGB finds this quoted paragraph an accurate reflection of the level of disclosure for the current year, and that it deals adequately with this preliminary request. (MGB Board Order: MGB 100/10, August 27, 2010) 19.

The MGB takes the view that it is the result of the assessment process that is under appeal, not the process itself. ... The Applicant has not offered any other grounds to justify a rehearing of the appeal that resulted in MGB 100/10. It appears that the Applicant merely disagrees with the decision in MGB 100/10 and seeks an opportunity to reargue his case.

Disagreement with a decision is not a valid ground for rescission of the decision. (MGB Board Order: MGB 003/11, January 12, 2011) [ 20 ] The “theme”, expressed in these excerpts, culminates in the following expression of frustration and fatigue, made by the MGB in a decision of the ARB [LARB #1222-2011-P] issued on August 5, 2011: This same argument has gone on for too long, year after year, The Complainant is using a ‘dogeared’ approach with largely recycled evidence, much of which is very dated or irrelevant.

The Board listened very patiently over a period of several hours, waiting for relevant market evidence to materialize in the Complainant’s submission. While the Complainant’s evidence was thick in volume, the Board finds it to be surprisingly thin in terms of relevant market analysis. Is [it] a fallacy to assume that by providing over 100 Assessment

Summary Reports or a group of 11 unadjusted MLS sales from 2008 to 2010, that this could possibly sway the Board? These properties vary in age, size, quality, degree of renovation, influences and location, and include homes located in different quadrants of the city. If the Complainant assumes that it is the role of the Board to conduct an analysis of the data, he is completely mistaken. The role of the Board is not to conduct a pseudo-appraisal and thereby make calculations and adjustments. The Board merely weighs the evidence on its relative merits.

The relevant analysis should already be done and the material should be presented and organized in such a fashion that the conclusion is clear and supportive of the party’s position. It would be entirely inappropriate for the Board to hunt through the material presented, looking for pieces to support a certain position. The evidence must stand on its own. In this instance, the Complainant’s submission does not.

The Complainant’s evidence was a rambling collection of pieces of data, lacking sufficient focus, cohesiveness or up-to-date analysis for the Board to be able to draw any meaningful and factual conclusions. This was merely a compilation of years of observations and data, left for the Board to wade through. Without proper analysis and adjustments on a group of dissimilar market sales, the Board is left with stuffing, not evidence. This is not to say that the Board is disinterested, or unwilling to listen. On the contrary.

The Board welcomes the opportunity to ‘clear the air’ - once and for all resolve a matter that Mr. Manyluk has brought to the Assessment Review Board year after year. Mr. Manyluk has not been successful in the past using the approach he has taken (as evidenced by numerous decisions placed in evidence by the Respondent). Why then, would the same approach work this time? The clear answer is that Mr. Manyluk consistently fails to give the Board cause to doubt that his property would not attain the assessed value, if sold on the open market.

If the Complainant was willing to provide the Board with an appraisal, or several Realtor evaluations (with conclusions fully supported), Mr. Manyluk would find the Board to be fully receptive and very patient indeed. If instead, Mr. Manyluk is more interested in railing against the assessment process, the Board takes a dim view and finds this to be a tiresome waste of resources. If the Board were to accord as much time and effort to each residential appeal as it has on this file, the system would bog down and grind to a halt. The rules for City disclosure are legislatively determined.

The Board finds no contravention in the City Assessment policy.

The matters of traffic exposure and deferred maintenance are a smokescreen in this hearing. While it is true that the assessment must incorporate the characteristics and physical condition of the property as of December 31 of the prior year, the ‘bigger picture’ is the end result of all the components, variables and adjustments in the assessment. It matters not whether a 20%, 50% or 100% ‘traffic allowance’ is applied. This is theoretical. What is factual is the evidence of a typical market sale, which by nature encapsulates all the positive and negative aspects.

The matter of deferred maintenance is no different. Assessments are to be based on typical market conditions. Deferred maintenance is a conscious choice of the homeowner, but at a certain point the home degrades to the point at which it is valued solely on its land component. In fact, Mr. Manyluk argued at the hearing that it was pointless to maintain his home because it was only worth land value. The Respondent provided their “2011 Elbow Park Base Land Rate Analysis”.

The subject is located in ‘sub-neighbourhood 3’, the part of Elbow Park with the lowest land rate at a mean of $125 per square foot based on sales. The land rate for 2011 is assessed at $120 per square foot, meaning that the underlying value of the subject is 9,375 square foot lot area x $120 = $1,125,000. On this basis, the subject assessment of $794,500 is unreasonably low and therefore incorrect, inequitable and it should be raised. The Board reminds the Complainant of the 2005 decision of the Municipal Government Board (DL 165/05) that in the closing

summary comments, it was stated: “if the Appellant continues to believe that the subject property is over-assessed, perhaps, as the Honourable Mr. Justice Martin suggested having a professional appraisal completed would be advisable.” (Page 8 of 8) The Complainant has failed to heed this advice. There was not a scrap of evidence to reduce this assessment. D. History of Challenges Before this Court [ 21 ] In 2003, Mr. Manyluk began challenging decisions of the Assessment Tribunals in this Court. Six applications have been advanced, of which the following four have been heard: 1.

Action No. 0201-18184 (applicable in respect of assessments of the Property for the 1999, 2000 and 2001 Taxation Years): An application for judicial review before Martin J. (as he then was) for the following relief: (

a) certiorari, quashing decisions of the MGB; (

b) direction back to the MGB for a rehearing before a new panel; and (

c) direction to the City assessor to provide Mr. Manyluk with additional material relating to assessment methodology which Mr. Manyluk felt he was entitled to obtain pursuant to

section 299 of the MGA. (the “Martin Decision”) 2. Action No. 0701-10233 (applicable in respect of assessment of the Property for the 2006 Taxation Year): An application for judicial review before Erb J. for the following relief: (

a) certiorari, quashing decisions of the MGB; (

b) direction back to the MGB for a rehearing before a new panel; (

c) direction to the Board to conduct their rehearing (and all other residential property appeals) in a manner which: (

i) clearly applies the principles of equity as set out in the Bramalea decision; (ii) applies proper assessment principles using numeric and arithmetic calculations based on the form of the assessor’s annually derived numeric model in comparing similar properties; and

(iii) applies the legal principles of disclosure and the legal principles of standard and burden of proof as set out in the decisions in Estevan Coal Corp. v. Estevan (R.M. No. 5) , 2000 SKCA 82 ; Kramer Ltd. v. Sherwood (R.M. No. 159) , 2003 SKCA 121 and Nortel Networks Inc. v Calgary (City) , 2008 ABCA 370 , 440 AR 325 . (the “Erb Decision”) 3. Action No. 0901-11051 (applicable in respect of an assessment of the Property for the 2007 taxation year): An application for judicial review before Tilleman J. for the following relief: (

a) certiorari, quashing decisions of the MGB; (

b) direction back to the MGB for a rehearing before a new panel; (

c) direction to the Board to conduct their rehearing (and all other residential property appeals) in a manner which: (

i) clearly applies the principles of equity as set out in the Bramalea decision; (ii) applies proper assessment principles using numeric and arithmetic calculations based on the form of the assessor’s annually derived numeric model in comparing similar properties; and (iii) applies the legal principles of disclosure and the legal principles of standard and burden of proof as set out in the decisions in Estevan Coal Corp. v. Estevan (R.M. No. 5) , 2000 SKCA 82 ; Kramer Ltd. v. Sherwood (R.M.

No. 159) , 2003 SKCA 121 and Nortel Networks Inc. v Calgary (City) , 2008 ABCA 370 , 440 AR 325 . (the “Tilleman Decision”) 4. Action No. 0901-11052 (applicable in respect of an assessment of another property owner’s property for the 2007 taxation year): An application for judicial review before Kent J. for the following relief: (

a) certiorari, quashing decisions of the MGB; and (

b) direction back to the MGB for a rehearing before a new panel. (the “Kent Decision”) [ 22 ] The following two applications have also been initiated by Mr. Manyluk, but have not yet proceeded to a hearing: 1. Action No. 0901-17324 (in respect of an assessment of the Property for the 2008 taxation year): An application for judicial review for the following relief: (

a) certiorari, quashing decisions of the MGB; and (

b) direction back to the MGB for a rehearing before a new panel. 2. Action No. 1101-12156 (in respect of an assessment of the Property for the 2011 taxation year): An application for leave to appeal and judicial review for the following relief: (

a) cancellation of CARB decision set out in CARB order: LARB # 1222-2011 - P; and (

b) certiorari, CARB decision set out in CARB order: LARB # 1222-2011 - P. [ 23 ] It is interesting to note that materials filed by the City in connection with the latter application total 881 pages. Those materials no doubt represent only part of the material to be considered by this Court if Mr. Manyluk’s action proceeds. E. The Martin, Erb, Tilleman and Kent Decisions

[ 24 ] In each of these four decisions, Mr. Manyluk’s application was dismissed. In each of the Erb, Tilleman and Kent Decisions, costs were awarded against Mr. Manyluk. In the Martin Decision, Martin J. told Mr. Manyluk he was “extremely lucky” that costs were not being awarded against him. The City states that Mr. Manyluk failed to pay the costs awarded in the Erb and Tilleman Decisions for over 18 months, despite repeated demands by the City for payment. It asserts that the costs were paid only after this application was filed. [ 25 ] In dismissing Mr.

Manyluk’s application for judicial review, the Martin Decision left no doubt regarding the Court’s view of the merits of Mr. Manyluk’s challenges. The City’s brief, filed in this action, quotes extensively from his Lordship’s oral decision. [ 26 ] His Lordship was highly critical of Mr. Manyluk’s motives and actions. His Lordship noted that the central issue with which various Assessment Tribunals engaged by Mr. Manyluk were concerned, namely the market value assessment of the Property, could have been efficiently and expeditiously addressed if Mr.

Manyluk had simply obtained and presented an appraisal from a qualified appraiser, an exercise that would have cost only a few hundred dollars. His Lordship commented, inter alia : I think what you have done amounts to an abuse of process. You have gone too far. As a citizen, you had certain rights. You have exhausted and abused those rights. You have taken your case too far. [ 27 ] In dismissing Mr. Manyluk’s application for judicial review, the Court in the Erb Decision determined that his application had been made outside of the applicable limitation period.

Justice Erb did, however, note at para. 13 that, at Mr. Manyluk’s rehearing before the MGB, no new evidence was provided. [ 28 ] In dismissing Mr. Manyluk’s application for judicial review, the Court in the Tilleman Decision also determined that, under the circumstances considered by the Court, Mr. Manyluk’s application had been made outside the applicable limitation period. Justice Tilleman commented further at paras. 34 - 36, noting that he was dismissing Mr.

Manyluk’s application for specific reasons, being: First, Martin J. (as he then was) found the challenges by this particular Applicant to be an abuse of process. That judicial finding did not slow Mr. Manyluk down in the slightest - he even went so far as to challenge his neighbour’s assessment, which matter was dismissed by Kent J. of this Court. Second, the Applicant did not follow the Martin J.’s direction or suggestion that an independent appraisal be undertaken. Mr. Manyluk told me in Court that “getting an appraisal doesn’t solve that problem”. By “that problem” I take Mr.

Manyluk to mean that he sees himself as an advocate for the general public on this issue. He is wrong in that self-characterization. There is nothing in the evidence before me to suggest that Mr. Manyluk has the authority to speak for anyone but himself. The Applicant also told me the City wouldn’t care about an appraisal but the City solicitor indicated in Court that they would have considered it. Justice Martin and I are firmly on the same page on the facts of this 10 - year administrative and judicial merry-go-round.

Third, quite apart from the last two points, I would still dismiss the judicial review as I find it amounts to a collateral attack on Erb J’s recent decisions with respect to limitations. [ 29 ] In dismissing Mr. Manyluk’s application for judicial review, the Court in the Kent Decision determined that the MGB’s decision not to allow a re-hearing of its earlier decision was reasonable. [ 30 ] Mr.

Manyluk notes at para. 5 of his brief filed January 29, 2012 that: Of the four Court of Queen’s Bench decisions decided here, those were decided on issues not directly related to the issues of whether or not the tribunal hearings were conducted in a fair manner following the rules of natural justice.

[ 31 ] Mr. Manyluk would have me draw the inference that proceedings before this Court should not be considered vexatious unless and until this Court expressly considers and rules on the issue of natural justice. In my view, this has already occurred. The Martin Decision clearly dealt with this issue. The Erb Decision noted that Mr. Manyluk had presented no new evidence in his MGB re-hearing. The Tilleman Decision manifests sympathy with the perspective taken in the Martin Decision regarding the fairness of treatment received by Mr. Manyluk at the Assessment Tribunal level.

The Kent Decision determined that the MGB’s decision not to allow a re- hearing of its earlier decision was reasonable. [ 32 ] I disagree with Mr. Manyluk’s statement that only one of this Court’s decisions dealt with the issue of whether or not hearings conducted at the tribunal level were conducted in a fair manner following the rules of natural justice. In my respectful view, a conclusion regarding Mr.

Manyluk’s legitimate expectations of fair treatment and application of the rules of natural justice was clearly expressed in the Martin Decision, alluded to in the Erb Decision, reiterated in the Tilleman Decision and expressed in the Kent Decision. [ 33 ] Further,

Part 2.1 can apply if proceedings are being conducted in a vexatious manner, notwithstanding the fact that the proceedings themselves may not be vexatious. The Court in the Erb and Tilleman Decisions found that Mr. Manyluk disregarded applicable limitation periods. Added to the “mix”, Mr.

Manyluk’s failure to comply, on more than one occasion, with procedural requirements might be viewed as vexatious, as might his collateral attack on the Erb Decision in proceedings before Justice Tilleman. [ 34 ] The foregoing notwithstanding, I view the years of activity before Assessment Tribunals, where the issues of procedural fairness and natural justice were considered, as part of the continuum which has now found its way to this Court. For that reason, I would have been prepared to find a single decision of this Court which expressly dealt with Mr.

Manyluk’s concerns in this regard as evidence of a continuation of a pattern of proceedings and conduct. [ 35 ] Mr. Manyluk asserts at

Part I, item 3, of the Manyluk brief that: The original Court of Queen’s Bench decision (Justice Martin) was an oral decision and with the greatest respect because I believe that I bear a great deal of the responsibility here, I submit that the decision not contain adequate fact finding, analysis or reasons to be an authority. [ 36 ] Yet, Mr. Manyluk did not appeal the Martin Decision. Cost should not have been a significant concern to Mr. Manyluk since he has, throughout, chosen to represent himself. The fact that his Lordship chose to render an oral decision does not undermine its precedential value. [ 37 ] Mr. Manyluk contends at

Part I, item 4, of his brief that: The Justice Martin decision has also, I respectfully submit, been overtaken by other tribunal judicial decisions. [ 38 ] This assertion, in my view, is irrelevant to the present proceedings. As discussed later in this judgment, in considering the potential application of

Part 2.1, this Court’s function does not extend to a review of the merits of earlier Assessment Tribunal or Court decisions. Rather, this Court’s job is to look for persistent patterns of behaviours and the outcomes, at both the Assessment Tribunal and Court level, of any such persistent pattern. F. Challenges Before the Court of Appeal of Alberta [ 39 ] Mr. Manyluk has commenced the following proceedings in the Court of Appeal of Alberta: 1. Appeal Number 1101-0258 - AC: Mr. Manyluk seeks an Order preserving the time available to file further supporting material required for leave to appeal the Erb Decision. 2. Appeal Number 1101-0259 - AC: Mr. Manyluk seeks an Order:

(

a) preserving the time available to file further supporting material required for leave to appeal the Tilleman Decision; or,alternatively, (

b) staying his appeal pending the outcome of his appeal of the Erb Decision. [40] On January 12, 2012, LoVecchio J. dismissed Mr. Manyluk’s application to stay his appeal of the Tilleman Decision. V. Mr. Manyluk’s Motion For Non -Suit [41] At the close of the City’s case, Mr. Manyluk requested that the City’s application be dismissed on the grounds that no casehad been made. I declined to grant Mr. Manyluk’s request because I was of the view that the facts presented by the City disclosed a basisfor its request that

Part 2.1 be invoked and that the City had not failed to give any evidence at all of one of the key elements of its causeof action. Subsequent reflection has not changed my view. VI. Analysis of Legislative Provisions [42] Sanctions under

Part 2.1 of the Judicature Act may be applied if a person initiates vexatious proceedings. They may also beinvoked even if the proceedings themselves are not vexatious if a person conducts proceedings in a vexatious manner. This case raisestwo interesting issues in respect of the application of these sanctions. [43] First, are Mr. Manyluk’s actions before various Assessment Tribunals over many years relevant in considering the applicationof the Judicature Act or is this Court’s review of the circumstances limited to his actions before the Courts? [44] Second, assuming this Court is prepared to invoke

Part 2.1, may it also require Mr. Manyluk to obtain leave to commenceproceedings before Assessment Tribunals or is the Court’s authority to require leave limited to proceedings before the Courts? A. Limits to the Application of

Part 2.1 [45] Invocation of

Part 2.1 is rightly considered to be an extreme sanction, as it may dramatically affect legal rights whichindividuals otherwise expect to be able to exercise. As noted at page 4 of the NSLRC 2006 Report: In our society, access to justice is an important right, to be limited only in exceptional circumstances. The actions of vexatious litigants,however, are so extreme that in invoking their right to access justice, they may undermine the rights of others.

In the words of WakelingJ.A., of the Saskatchewan Court of Appeal, a “…right to have whatever legally grounded dispute…duly considered and adjudicated bythe courts…is not [a] right to continually require any party to spend time, effort and money in responding to a claim that has no legalfoundation.” [46] That said, the provisions of

Part 2.1 do not prevent a person from commencing or continuing an action. If invoked, theyrequire that person to convince the Court that there is a reasonable basis for the claim. At page 16 of the NSLRC 2006 Report, theauthors quote from the decision of Stone J.A. in R. v. Olympia Interiors Ltd. (2004), 2004 FCA 195 , 323 NR 191 (FCA) at 193,in connection with analogous provisions applicable to the Federal Court: The power conferred on the Court by sub-section 40(1) of the Act is, of course, most extraordinary, so much so that it must be exercisedsparingly and with the greatest of care.

In a society such as ours, the subject is generally entitled to access to the courts with a view ofvindicating his or her own rights. This concern was obviously in the mind of the legislators, seeing that some balance is built into section40 by allowing proceedings to be instituted or continued with leave of the Court.

[47] The authors refer to two other helpful articulations of the purpose and scope of vexatious litigant legislation. First, as noted inCanada (Attorney General) v. Mishra, [2000] FCJ No. 1734 (FCA) at para. 16: An order under subsection 40(1) does not put an end to a legal claim or the right to pursue a legal claim.

Subsection 40(1) applies only tolitigants who have used unrestricted access to the courts in a manner that is vexatious (as that term is understood in law), and the onlylegal effect of an order under subsection 40(1) is to ensure that the claims of such litigants are pursued in an orderly fashion, under agreater degree of court supervision than applies to other litigants. [48] Secondly, and more generally, The Ontario Court of Appeal stated thus in Foy v. Foy (No. 2) (1979), (ONCA), 26 O.R. (2d) 220 at 225: Vexatious proceedings legislation does not take away an individual’s right to redress.

Rather it provides that if an order is made againsthim under the legislation, he cannot seek redress until he has satisfied the proper authority that the proposed legal proceedings are not anabuse of the process of the Court and there is prima facie ground for them. [49]

Part 2.1 affords a person the opportunity to pursue proceedings in a court under controlled circumstances. Nevertheless, it isimportant keep in mind that, by limiting an individual’s right to pursue redress in court, we alter the terms by which that individualengages our system of justice. As noted in Midwest Property Management v. Moore, 2003 ABQB 581, 341 AR 386 at para. 42: Justice Veit considered the seriousness of invoking such a process in Hillcox v. Morrow (1995), (AB KB), 175 A.R.141 (Q.B.) (at paras. 11-12).

She noted that the judiciary should prevent access to the Courts in only the rarest of circumstances and onlythen for the good of the community as a whole. [50] Further, in Household Trust Co. v.

Golden Horse Farms Inc. (1992]), (BC CA), 65 BCLR (2d) 355(BCCA), Southin J.A. commented on the related notion of a court’s inherent jurisdiction to prevent abuse of process: In my opinion, the Supreme Court of British Columbia has an inherent jurisdiction and a corresponding duty to exercise that jurisdictionto protect a petitioner or plaintiff who seeks relief in that Court from proceedings by a defendant who is vexatiously abusing the processof the court. That it is a jurisdiction to be exercised with great caution, I have no doubt.

But not to exercise it where there is no other wayto bring reason into proceedings is, in effect, to deprive the plaintiff or petitioner of justice according to law. The court if it fails to actbecomes but a paper tiger. B. Requirements for the Application of

Part 2.1 [51] Invocation of

Part 2.1 of the Judicature Act requires that the Court be satisfied that a person is instituting vexatiousproceedings or conducting proceedings in a vexatious manner. The legislation does not define vexatious conduct. Rather, it describes theacts of (

i) instituting vexatious proceedings and (ii) conducting proceedings in a vexatious manner with reference to seven,non-exhaustive, examples of conduct considered to be vexatious. This approach appears to reflect the recommendations of the NSLRC2006 Report. At p. 25, the authors note as follows: The Commission is of the view that an all-encompassing, general definition of “vexatious” should not be attempted for the purpose ofvexatious litigant legislation.

Instead, as an approach which provides definite direction, yet which allows courts flexibility to deal withparticular circumstances, the Commission recommends that a vexatious litigants provision include the non-exhaustive list of factors(identified earlier in this section) setting out examples of potentially vexatious behaviour. [52] In Prince Edward Island v. Ayangma, [1999] PEIJ No. 30 (SCTD), the Court considered the application of s. 61 of theSupreme Court Act, RSPEI 1988, c. S-10, which provided as follows:

(1) Where a judge of the Supreme Court is satisfied, on application, that a person has persistently and without reasonable grounds (

a) instituted vexatious proceedings in any court; or (

b) conducted a proceeding in any court in a vexatious manner, the judge may order that (

c) no further proceeding be instituted by the person in any court; or (

d) a proceeding previously instituted by the person in any court not be continued, except by leave of a judge of the Supreme Court [ 53 ] The comments of Jenkins J. at para. 12 are helpful in understanding how to proceed with a determination of what constitutes vexatious conduct: It is a fundamental rule of legislative

interpretation that meaning is to be given to all language included in the statute. It is presumed that the legislature avoids superfluous or meaningless words. Every word in a statute is presumed to make sense and to have a specific role to play in advancing the legislative purpose: Sullivan, Driedger on the Construction of Statutes (3rd ed.), p. 159. This implies that for consideration of s. 61 , “vexatious” means something more or different than “without reasonable grounds”. In Mascan Corp. v.

French, supra, it was noted that categories of vexation are never closed; and that the word “vexatious” has not been clearly defined. It is noted there that in many of the reported decisions, legal proceedings have been held to be vexatious because they were instituted without any reasonable ground, and as a result those proceedings were found to constitute an abuse of the process of the court. An example of such proceedings is the bringing of one or more actions to determine an issue which has already been determined by a court.

In any event, whether an action is vexatious is a matter to be determined by objective rather than subjective standards. [Emphasis added.] [ 54 ] In Jamieson v. Denman 2004 ABQB 593 , 365 AR 201 , Watson J. (as he then was) discussed the concept of vexatiousness in a pre-Part 2.1 context. He noted as follows at paras. 126-129: I consider the word “vexatious” to carry with it a normative concept as well as a legal one.

It seems to me that a party can be said to have acted in a vexatious manner, not merely that they acted in a manner which might be characterized as mean-spirited or nasty, but also that in fact the nastiness conveyed itself through to the legal process itself. In other words, that the legal process was being misused.

My view of the word “vexatious” is that it connotes not simply that the party was acting without the highest of motives, or was acting in a manner which was hostile towards the other side. “Vexatious”, as a word, means to me that the litigant’s mental state goes beyond simple animus against the other side, and rises to a situation where the litigant actually is attempting to abuse or misuse the legal process.

This form of a normative component arises because it seems to me that proceedings which are legally possible or procedurally allowable may still be “vexatious” under my definition of the word “vexatious” for this purpose. In other words, mere bad or selfish motive might not be sufficient to establish vexatiousness.

On the other hand, bad or selfish motive might likewise not be absolutely necessary to establish vexatiousness although it seems likely that bad or selfish motives would tend to co-exist with using the legal process in bad faith and vexatiously. [ 55 ] Without limiting the scope of activities that could be considered vexatious, paras. (

a) through (

g) of s. 23(2) of the Judicature Act offer objective criteria against which Mr. Manyluk’s actions may be assessed. These criteria require not only that Mr. Manyluk engaged in the conduct mentioned, but that he has done so “persistently”. At para. 11 of Prince Edward Island v. Ayangma , Jenkins J. noted that: The adverb “persistently” is based on the adjective “persistent”, the lay dictionary definition of which includes “(

i) persisting, especially in spite of opposition; persevering. (ii) lasting or enduring. (iii) constantly repeated; continued.”

[56] Sherstobitoff J.A. commented on the meaning of “persistent” in R. v.

J.Y. (1996), (SK CA), 141 Sask R132 (CA) at para. 25: The appellant argued that since Parliament had used the term “repetitive behaviour” in s. 753(a)(i), and the term “persistent aggressivebehaviour” in 753(a)(ii), the term “persistent” in the latter clause should be read as meaning something more than merely repetitive: thatthere should be proof that the behaviour continued in the face of obstacles or remonstrance, something which was not established in thiscase, since the appellant had [n]ever been previously convicted or otherwise impeded in the pursuit of his activities.

However, theConcise Oxford Dictionary defines the word “persistent” as meaning “enduring” or “constantly repeated”. The judge made no error infinding that the behaviour of the appellant was persistent in view of the fact that the period of time during which he committed theoffences of which he was convicted extended from 1964 to 1992 without any significant periods during that time when no offences werebeing committed. [Emphasis added.] [57] In light of the foregoing, it seems reasonable to conclude that, for purposes of

Part 2.1, “persistence” may manifest itself as arepetitive pattern of behaviour in the face of resistance. Further, while the words “without limitation” in s. 23(2) indicate that conductother than that enumerated in paras. (

a) though (

g) may also be vexatious, it is a reasonable inference that such other conduct would alsoneed to be persistent. VII. Application of the Legislative Provisions [58] It is important to establish what this Court is and is not required to do in determining if

Part 2.1 applies to Mr. Manyluk. ThisCourt is not required to “re-hear” close to 20 years of property tax assessment appeals. It is not required to assess the merits of Mr.Manyluk’s objections to those assessments. Further, it is not required to re-hear Mr. Manyluk’s four actions before this Court. On thisapplication, this Court does not sit as an appellate court as regards the merits of previous Assessment Tribunal or Court of Queen’s Benchdecisions involving Mr. Manyluk. [59] Rather, this Court must take the prior Assessment Tribunal and Court of Queen’s Bench decisions as it finds them.

Its task isto look for patterns which may have emerged over the years from those hearings and decisions. If it finds such a pattern, it mustdetermine whether that pattern rises to the level of persistent conduct contemplated by s. 23(2), either as described in paras. (

a) through(

g) or in some other fashion as permitted by the words “without limitation” in s. 23(2). [60] The City referred to various decisions in which

Part 2.1 was found to apply, including: O’Neill v. Deacons, 2007 ABQB 754,441 AR 60; Koerner v. Capital Health Authority, 2011 ABQB 462; Henry v. El, 2010 ABCA 312; and Wong v. Giannacopoulos, 2011ABCA 206, 510 AR 234. In each of those cases, more proceedings were taken before the courts than is the situation involving Mr.Manyluk. If, however, Mr. Manyluk’s appearances before Assessment Tribunals as well as before this Court and the Court of Appeal ofAlberta are considered as part of a continuum, the proceedings in this case far outnumber those in the City’s cases.

This returns us, then,to the issue of whether Mr. Manyluk’s conduct before Assessment Tribunals should be taken into account in the determination ofwhether to invoke

Part 2.1. A. Consideration of the Assessment Tribunal History [61] The City notes at para. 56 of its brief that: While the Assessment Review Board or the Municipal Government Board may not constitute ‘courts of competent jurisdiction’ in thenarrow sense, they nevertheless form an integral part of the judicial system and their relevance to the vexatious nature of Manyluk’sproceedings ought to be considered by a broad and purposive

interpretation of this provision. [62] The City was unable to provide authority for the proposition that Mr. Manyluk’s various appearances before the AssessmentTribunals should be taken into account on this application. Nonetheless, I consider it reasonable and necessary to review Mr. Manyluk’sappearances before this Court in conjunction with his appearances before Assessment Tribunals, rather than in isolation. I have arrived atthis conclusion based on my analysis of the language of

Part 2.1 of the Judicature Act.

[63] First, I note that the grounds enumerated in paras. (

a) through (

g) of s. 23(2) refer to “proceedings”, which term is not definedin the Judicature Act. Does this term include proceedings before administrative tribunals or is it limited to proceedings before the Courts? [64] The Judicature Act in s. 23(1) defines “Court” to include only the Court of Appeal of Alberta, the Court of Queen’s Benchand the Provincial Court. Sections 23.1(1) and 23.1(7) then refer to proceedings in the “Court”, as defined. Further, s. 23.1(6) articulatesthe extent to which one “Court”, as defined, may bind the others. These provisions might seem to suggest that

Part 2.1 of the JudicatureAct contemplates only proceedings in the defined Courts. [65] However, s. 23(2), in setting out what constitutes a vexatious proceeding, is not so specific. For example, para. (

a) does notuse the defined term “Court”, but instead refers to a “court of competent jurisdiction”, which term is not defined in either the JudicatureAct or the

Interpretation Act, RSA 2000, c. I-8. It is conceivable that the reference to “bringing proceedings to determine an issue that hasalready been determined” in para. (

a) could include proceedings brought before an Assessment Tribunal to determine that issue, provideda court has previously considered the issues which are being raised before that Assessment Tribunal. Similarly, nothing in thearticulation of paras. (

b) through (

e) leads inexorably to the conclusion that “proceedings” refers only to proceedings before a Court, asopposed to an Assessment Tribunal. [66] Para. (

f) refers to taking unsuccessful appeals from judicial decisions. What, then, is a “judicial decision”? Is it confined todecisions of Courts, as defined in the Judicature Act? In Guaranty Trust Co. of Canada v. Bailey, (1987) 1987 ABCA 95 , 77AR 387, the Alberta Court of Appeal noted the following: In Spencer-Bower and Turner on Res Judicata, Second Edition, p. 10, res Judicata is firstly defined as a judicial decision, pronounced bya judicial tribunal.

In discussing what is a judicial decision, it is said at p. 29: What is a judicial decision? 30 In order to establish a res judicata on which an estoppel may be founded, it must appear, not only that the person, or body of persons,pronouncing the deliverance constituted a judicial tribunal, but also that what was pronounced amounted to a judicial decision.

Theremust have been both a judex, and a judicium, which, for purposes of estoppel, means a decision or determination or adjudication of somequestion of law or fact, whether such decision takes the form of an express judicial declaration, or is necessarily involved in thecommand or prohibition which constitutes the judgment or judicial act in its coercive or operative aspect.

Everything which answers tothis description, by whatever name it may be called (for different phraseology in this respect has been adopted by different tribunals, orby the same tribunal, at different stages in the history of our jurisprudence) is deemed a judicial decision; and nothing which falls shortof it (again, irrespective of nomenclature) is so deemed.” [Emphasis added.] [67] Key to the application of this description is the term “judicial tribunal”. What is a “judicial tribunal”? Must it be a court ofcompetent jurisdiction?

My review of the case law suggests that the terms “judicial tribunal” and “quasi-judicial tribunal” are usedinterchangeably and that a “judicial tribunal” is not limited to a court, but can include an administrative board. In Canada (Minister ofNational Revenue) v. Coopers and Lybrand Ltd., (SCC), [1979] 1 SCR 495, the Supreme Court of Canada enumeratedseveral criteria for distinguishing administrative and judicial or quasi-judicial decisions: It is possible, I think, to formulate several criteria for determining whether a decision or order is one required by law to be made on ajudicial or quasi-judicial basis.

The list is not intended to be exhaustive.

(1) Is there anything in the language in which the function is conferred or in the general context in which it is exercised whichsuggests that a hearing is contemplated before a decision is reached?

(2) Does the decision or order directly or indirectly affect the rights and obligations of persons?

(3) Is the adversary process involved?

(4) Is there an obligation to apply substantive rules to many individual cases rather than, for example, the obligation to implement social and economic policy in a broad sense? [ 68 ] The Supreme Court went on to give examples of both kinds of decisions: Administrative decision does not lend itself to rigid classification of function. Instead, one finds realistically a continuum. As paradigms, at one end of the spectrum are rent tribunals, labour boards and the like, the decisions of which are eligible for judicial review.

At the other end are such matters as the appointment of the head of a Crown corporation, or the decision to purchase a battleship, determinations inappropriate to judicial intervention. [ 69 ] With this framework in mind, I conclude that decisions of the Assessment Tribunals are “judicial decisions” that are appropriately considered in the determination of whether Mr. Manyluk’s proceedings are vexatious.

It is interesting to note that both the ARB and MGB have, under the MGA, authority to award costs and that such awards have the same effect as would a registered writ of enforcement issued after judgment has been entered in an action by the Court of Queen’s Bench. That fact suggests that, at least as relates to cost awards, the ARB, the MGB and the Court of Queen’s Bench function in a similar manner. [ 70 ] Next, para. (

g) does not refer to behaviour before a Court. Rather, it refers to inappropriate “courtroom behaviour” and “courtroom” is not defined. The structure of para. (

g) does not, of itself, require that conduct must be before a Court. It admits of the possibility that conduct which would be inappropriate if engaged in before a Court might be vexatious if it arose outside a Court but before an Assessment Tribunal. [ 71 ] Accordingly, examining the context in which the word “proceedings” is used in s. 23(2), I conclude that that term includes proceedings before administrative tribunals. It seems to me unnecessarily restrictive to read in the words “in a Court” after each reference to “proceedings”.

If the Legislature had meant so to restrict the meaning of vexatious proceedings, it could well have used express language to that effect. I am further bolstered in my conclusion by the use of the words “without limitation” in s. 23(2). Those words seem to me to be inconsistent with a narrow focus and instead mandate a broad review of the individual’s conduct.

Romaine J. of this Court made these comments at para. 39 of her decision in Bianco v. 935074 Alberta Ltd. , 2007 ABQB 150 : However, as noted by Henry J. in Re Lang Michener , “in determining whether proceedings are vexatious, the court must look at the whole history of the matter and not just whether there was arguably a good cause of action.” Viewed as a whole and in context, I am satisfied that Mr. Del Bianco has a history of instituting vexatious legal proceedings without any reasonable ground. [Emphasis added.] [ 72 ] Were this Court to consider Mr.

Manyluk’s four appearances before this Court (in conjunction with the two actions which he has commenced but not proceeded with) in isolation from the many Assessment Tribunal experiences which led him to the Court of Queen’s Bench, it would deprive the Court of information and context which properly should be before it if it is to fulfill its mandate of determining whether our court system and its stakeholders are or may become vulnerable to misuse or abuse. [ 73 ] While I am mindful of the effect of a finding of vexatious proceedings on an individual’s access to the judicial system, I must also be mindful of the purpose of these legislative provisions.

For access to justice to have meaning for all, scarce judicial resources must be fairly and properly allocated. To allow an individual to monopolize those resources with unmeritorious proceedings inevitably hampers access to justice for others. In my view, the need for careful husbanding of resources permits, and indeed requires, this Court to take into account the full history of an individual’s actions, both in the Courts and at the administrative level. B. Conclusion as to Vexatious Proceedings [ 74 ] In determining the possible application of

Part 2.1 to Mr. Manyluk it is important to remember that, as repeated in MGB decisions quoted above, his objections lie not so much with the City’s assessment of the actual value of the Property but, rather, with his concerns relating to disclosure of information and methodological approach to mass property assessment. Evidence in support of that conclusion may be found in para. 46 of the Manyluk Affidavit where he notes:

Thus, no I have not purchased an appraisal. It seems akin to obtaining a non-arm’s length document. Neither is an appraisal germane to most of the issues that I am arguing ... [Emphasis added.] [ 75 ] In addition, the following exchange during the Manyluk Questioning is particularly revealing: Question: Well, you are the one that brings these appeals, why are you bringing them in the sense of how much money do you think that you are going to recoup as a result of your legal actions? Answer: Well, that’s not the real reason … I was bringing the actions is for a one-year reduction in my property tax.

Question: So what is the real reason then? Answer: Well, because I don’t believe the entire process is fair including the Municipal Government Board, the tribunal are procedurally fair, and in that instance, it’s not a one-year thing, it’s a many year thing. [ 76 ] In Mr. Manyluk’s mind, “procedural unfairness” involves, inter alia , failure to disclose. In his Questioning, Mr. Manyluk acknowledged that he considered the City’s refusal to disclose information to him to be unfair and that, since 1999, he has advanced the concept of breach of natural justice in an attempt to rectify that non-disclosure. [ 77 ] Mr.

Manyluk does not appear to be deterred by the fact that the information he seeks need not be disclosed to him. During his Questioning, he acknowledged that “the City is not required to disclose to the property owners the coefficients of the equations” but stated that he will, “under the right circumstances”, continue to seek disclosure of this information.

In an effort to rectify what he considers to be a flaw in the legislative provisions which expressly deal with disclosure, he has persistently sought this information at the Assessment Tribunal level and, on four occasions, has sought recourse before this Court when disclosure was denied. [ 78 ] Mr. Manyluk’s objective in 1987 undoubtedly was to secure a reduction in his property tax assessment. However, the materials reviewed earlier in this judgment suggest that his objectives may have evolved over the years.

His many appearances before Assessment Tribunals, his actions before this Court which resulted in the Martin, Erb, Tilleman and Kent Decisions, and his actions still pending before this Court all manifest an attempt to compel disclosure of information and to discredit methodology which, he believes, will enable him to establish that the City’s property tax assessment protocols are flawed. [ 79 ] The following extract from Mr.

Manyluk’s 2011 submission to the Assessment Review Board, as quoted at para. 35 of the Hess Affidavit, reveals his true motivation: It is not up to the complainant to provide an assessment value with which he can be hung by the assessor or the Board. The final result is not an issue of who has presented the best answer nor is it an issue of whether or not the complainant’s requested value is accurate. The issue is whether the assessment is first equitable and second at market value.

If it is not either of these then the issue is to determine the market value and then an equitable value pursuant to the MGA and the law. [ 80 ] Indeed, Mr. Manyluk’s steadfast refusal to obtain an appraisal of his property in support of his many assessment appeals suggests that determining the value of the Property is no longer his primary objective. His strategy, for many years now, has followed a predictable pattern: 1. appeal an initial assessment through all available levels of Assessment Tribunal appeal;

2. when he loses, seek a re-hearing; 3. when he is denied a re-hearing, appeal to this Court for judicial review; and 4. in two instances, when denied relief sought in this Court, appeal to the Court of Appeal of Alberta. [ 81 ] Mr. Manyluk has resisted Martin J.’s suggestion, now almost a decade old and consistently re-addressed by various Assessment Tribunals as potentially helpful to Mr. Manyluk’s cause, that he obtain an appraisal of the Property. Indeed, Mr. Manyluk acknowledged in his Questioning that the Property likely is worth more than its appraised value. Rather, many years of activity on Mr.

Manyluk’s part reveals that he has engaged the Assessment Tribunal and Court processes to achieve a different objective. [ 82 ] What is Mr. Manyluk’s real reason for his steadfast pursuit of this matter in various Assessment Tribunals and in the Courts? At

Part III, para. 28 of his brief Mr. Manyluk asks: Who will attempt to obtain due process for the residential property owners in Alberta if I don’t? ... [ 83 ] A litigant’s state of mind and expressed intentions should inform the Court in its efforts to determine if the Courts and the Court process are being misused. One individual’s perception that he or she is legitimately exercising a right may, depending on the context, be viewed by others as abusive.

Resolution of that conflict will depend, in large measure, on determining if the processes and procedures employed by the individual seeking to enforce rights are appropriate or not, in light of their objectives.

This is evident from the various references in s. 23(2) of the Judicature Act , including at para. (b) “bringing proceedings that cannot succeed or that have no reasonable expectation of providing relief” and at para. (c) “bringing proceedings for improper purposes”. [ 84 ] At first blush, it is tempting to conclude that no property owner should be denied full access to whatever appeal process (whether at the Assessment Tribunal level or before the Courts) may exist in respect of an annual property tax assessment.

Reasonable people can agree that factors which affect value change continuously and should be re-examined regularly to ensure that they reflect reality. However, it is clear that securing an accurate value for the Property is not Mr. Manyluk’s objective. Rather, his objective is to obtain information to which he knows he is not entitled and to demonstrate his belief that the City’s assessment methodology is flawed. With respect to the latter point, it may well be that the City’s methodology has flaws. Indeed, the City acknowledges as much.

However, neither the Assessment Tribunal nor the Court is the appropriate forum in which to pursue a change to that methodology. Mr. Manyluk should consider other avenues, such as legislative or regulatory reform. [ 85 ] Further, I am concerned that Mr. Manyluk seems prepared to take his repetitive applications to ever greater lengths. As previously noted, while he has made many appearances before the Assessment Tribunals, he has, to date, brought his arguments only four times to this Court and twice to the Court of Appeal of Alberta. However, he is clearly undeterred by his lack of success in the Courts.

I am satisfied that whether proceedings may be considered vexatious is not based solely on their numbers. Surely there is no “threshold” number of appearances Mr. Manyluk must make in this Court or in the Court of Appeal of Alberta before those appearances may be characterized as vexatious. In my view, Mr. Manyluk already has demonstrated the kind of persistence contemplated by s. 23(2) of the Judicature Act and intervention is warranted at this point. VIII. Direction [ 86 ] This Court directs as follows: 1. Mr.

Manyluk shall not institute further proceedings in the Courts against the City without leave of the Court; 2. Mr. Manyluk shall not institute further proceedings in the Courts against the City on behalf of another person without leave of the

Court;

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