Edmonton (City) v Assessment Review Board of the City of Edmonton, 2012 ABQB 399

Court of Queen’s Bench of Alberta Citation: Edmonton (City) v Assessment Review Board of the City of Edmonton, 2012 ABQB 399 Date: 20120615 Docket: 1103 09983 Registry: Edmonton Between: The City of Edmonton Applicant - and - The City of Edmonton Assessment Review Board and Stephen Richard Wood Respondents _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice S.D. Hillier _______________________________________________________ 1 . This application for judicial review focuses on the

interpretation and application of statutory time requirements under the Municipal Government Act , RSA 2000, c M-26 (MGA). The Applicant City of Edmonton (City) challenges an Order of the Respondent City of Edmonton Assessment Review Board (ARB) which purported to validate the complaint of Stephen Richard Wood (Wood), even though it was received five working days after the prescribed deadline. 2 . The City asserts that the ARB erred in law by purporting to direct the complaint to a hearing on the merits in the

absence of authority to extend the deadline imposed pursuant to statute. It refers specifically to the mandatory language of ss. 309(1) (c), 461(1) and 467(2) of the MGA . 3 . Characterizing the error as jurisdictional or at minimum a matter of general law and statutory

interpretation, the City says the standard of review is correctness; however, even if the standard is reasonableness as the ARB asserts, the City urges that the level of deference cannot sustain the decision and that it must be referred back to the ARB with directions. 4 . The ARB responds that the decision is justifiable the range of reasonable dispositions in the exercise of its authority and the appeal should be dismissed. 5 . From the evidence as I will review shortly, two points deserve immediate notation:

i) it is clear that Mr. Wood objected to his assessment, sought to discuss it, then mailed the complaint before the deadline and was unaware of any specific delay in postal delivery; ii) on the other hand, the City did all that it was required to do in setting the deadline to include the required sixty days plus the period for deemed mail delivery to property owners as set by the

Interpretation Act , RSA 2000, c I-8 and giving notice that failure to meet the filing deadline would invalidate a complaint. 6 . In various other situations where complaints have been filed late, board decisions in Alberta have concluded that no power exists to extend the prescribed deadline. The ARB here made no reference to any prior cases where a discretion was exercised, much less the criteria being applied contrary to the wording of the legislation. 7 .

Having considered the full submissions and for reasons that follow, I have decided that the ARB erred in concluding that it had jurisdiction (or in exercising implied discretion) to extend the time for filing in the face of the mandatory language of the MGA . Accordingly the appeal of the City must be allowed. Background 8 . On January 4, 2011, the City mailed the Annual Realty Assessment Notice to property owners, including Wood. Enclosed with the Assessment Notice was a complaint form to be completed by owners who were not satisfied by the market value assessment of their property.

The bottom of the complaint form specifically states in bold: Important Notice : Your completed complaint form and any supporting attachments, the agent authorization form, and the prescribed filing fee of $50 must be submitted no later than March 14, 2011 to the following address: Assessment Review Board, Main Floor, City Hall Edmonton, AB T5J 2R7 New this year: you can file your complaint online. Go to http://arb.edmonton.ca Please be advised that complaints with an incomplete complaint form, complaints submitted after the filing deadline, or complaints without the required filing fee, are invalid.

If mailing, please allow sufficient time for delivery on or before the deadline date. 9 . Included with the Assessment Notice was a further document entitled Information about Your Assessment [Record,

Tab 6] which sets out suggested steps to follow in questioning an assessment. Step 4 notes: “If you’re still not satisfied, you may file a formal complaint with the ARB prior to the deadline date”. The document goes on to state the following: How do I make a formal complaint to the Assessment Review Board (ARB)? Your completed complaint form, any supporting attachments, and the required fee must be received no later than the deadline date indicated on this assessment notice ... Late formal complaints to the ARB The deadline date is indicated on the front of this assessment notice.

Complaints submitted after the deadline are invalid. If mailing, please allow sufficient time to ensure delivery on or before the deadline date. 10 . Mr. Wood asserts that he made multiple phone calls to the City from and after February 14, 2011 to try to discuss his assessment. He says that despite promises, his calls were not returned. In his last call on March 4, 2011 he said he was worried about not receiving any calls back and missing the deadline and “they informed me that I should mail it anyways.” 11 .

For reasons unexplained he mailed the complaint the following week on March 8 and it was post-marked March 9, 2011 which was a Wednesday. City records indicate it was received 11 clear days later on Monday, March 21, 2011. Mr. Wood opined that it may have sat on a City desk from an earlier date but there is no evidence to support any inference of delay except in postal delivery, since the complaint was addressed to the ARB specifically and stamped upon receipt. 12 . On April 5, 2011, a Notice of Hearing was sent to Mr.

Wood and the City to confirm a preliminary hearing date of May 11, 2011 for the purpose of determining whether the complaint was filed as required and whether a hearing on the merits should be set. 13 . No concerns arise as to the Hearing procedures. The ARB issued its Decision on May 26, 2011, declaring the complaint validly filed and directing a hearing on the merits. 14 . The ARB presiding officer in the written decision held that Wood’s intent was to file the complaint form by the filing deadline, but this was not achieved due to circumstances beyond his control, either with Canada Post or with the ARB.

Further, to deny Wood a merit hearing in the circumstances would be to deny him natural justice. Appeal Criteria 15 . The process for appeal from the Preliminary Decision is restricted to questions of law or jurisdiction only upon leave of the Court of Queen’s Bench pursuant to s. 470. Leave is further restricted to questions which are of sufficient importance to merit an appeal and cases where there is a reasonable chance of success. 16 . I will return to these criteria as to importance and success in the context of the standard of review.

Issues 17 . On November 25, 2011, Justice Ross granted leave to appeal on three issues: 1. Did the ARB err by incorrectly interpreting sections 309(1) (c) , 461(1) and 467(2) of the MGA ? 2. Did the ARB err by making unsupportable and unreasonable findings of fact not supported by the evidence? 3. Did the ARB err by failing to provide adequate reasons for the Decision? 18 . In dealing with this appeal, counsel are agreed that the issues have been fairly stated but that the Court must as always address two preliminary matters: 1) the ARB’s role on this appeal, and 2) the standard of review to be applied.

ARB Role on Appeal 19 . As to the status of the ARB, counsel quite properly notes that the specific circumstances of Wood as an unrepresented individual tend to invite a more probing role, consistent with the factors identified in Leon’s Furniture Limited v Alberta (Information and Privacy Commissioner) , 2011 ABCA 94 , 502 AR 110 at paras 28-29 . 20 .

The Court confirms and expresses its appreciation to counsel for the ARB in addressing the issues in a manner which: i. provided important procedural context to the appeal; ii. addressed technical points of law; iii. avoided any hint of supplemental reasoning for the brief decision under review; and iv. maintained the highest standards of independence and impartiality of the ARB. Legislation on Time Limits 21 . Before turning to the standard of review, it is important to set out the statutory context in which the ARB was obliged to consider whether the complaint could proceed on its merits.

It is noteworthy that the process was restructured by amendments to the MGA effective January 2010. Among a number of changes, the new legislation set up separate boards to deal with complaints affecting residential (Local) as distinct from commercial (Composite) property. In addition, the new provisions removed the Municipal Government Board as a statutory review forum and appeals are now restricted to the legal grounds as previously described. 22 . As relates specifically to the property assessment process, the statutory deadline for complaints has been doubled

from 30 to 60 days. The change in wording is important. The former s. 309 provided in

summary that the assessment notice must show the date by which a complaint must be made, which date “must not be less than 30 days after the assessment notice...” is sent to the assessed person. 23 . The wording now provides: 309(1) An assessment notice or an amended assessment notice must show the following ... (

c) the date by which a complaint must be made, which date must be 60 days after the assessment notice or amended assessment notice is sent to the assessed person; 24 . The following are the key sections related to the timing for complaints: 461(1) A complaint must be filed with the designated officer at the address shown on the assessment or tax notice, not later than the date shown on that notice.

(2) On receiving a complaint, the designated officer referred to in

section 455 must set a date, time and location for a hearing before an assessment review board in accordance with the regulations. 467(2) An assessment review board must dismiss a complaint that was not made within the proper time or that does not comply with section 460(7). 25 . In addition, the Minister has express power pursuant to ss. 484.1 (

j) and (

k) of the MGA to make Regulations respecting the jurisdiction of assessment review boards and the authority to hear complaints. Under the Matters Relating to Assessment Complaints Regulation , Alta Reg 310/2009 (AR 310/2009), the complainant is required to file a form set out in the Schedule, failing which the complaint is invalid and the assessment review board must dismiss the complaint. The complaint form sent by the City and mailed back by Wood, relevant portions of which are quoted above, complies with the form set out in

Schedule 1 of these regulations. Standard of Review 26 . Although three issues or questions were stated, the submissions focussed largely on the first ground, being the ARB’s

interpretation and application of ss. 309(1) (c) , 461(1) and 467(2) of the MGA . 27 . Dunsmuir v New Brunswick , 2008 SCC 9 , [2008] 1 SCR 190 provides a two step process for determining the standard of review to be applied to an appeal or judicial review of tribunal’s decision: 62 ...First, courts ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question.

Second, where the first inquiry proves unfruitful, courts must proceed to an analysis of the factors making it possible to identify the proper standard of review. 28 . The City relies on Boardwalk Reit LLP v Edmonton (City) , 2008 ABCA 220 , 437 AR 347 in support of its argument that general questions of law in respect of assessment complaints are subject to a correctness review. The Court of Appeal was dealing there with an appeal on judicial review of the decision of the Municipal Government Board as the administrative appellate body under the former legislation.

As a hybrid board entitled to hear new evidence but not conduct a new hearing, a lower level of deference probably applied.

To more definitively address the standard of review from which it applied correctness, the Court of Appeal engagedin the analysis contemplated by the Supreme Court in Pushpanathan v Canada (Minister of Citizenship and Immigration), (SCC), [1998] 1 SCR 982, [1998] SCJ No 46 at paras 27- 31: 1. on the matter of expertise or experience, it determined that the traditional courts have more experience and expertise interpretingthe scope of statutes and of appeals; 2. on the importance of the question of law, the consequence of incomplete information was seen as applicable to all future cases aswould invite judicial correction; 3. as to a privative clause, it was described as weak, relying upon prior analyses; and 4. as to the importance of the tribunal and the dispute, the issue of penalties was not seen to be policy-driven but rather a defineddispute. 30.

The ARB points out that the standard of review for assessment review boards on preliminary issues under theamended legislation is not yet settled. As to deadlines, greater deference is to be accorded to a tribunal’s

interpretation of its homelegislation as well as on questions of law which are not of central importance to the legal system as a whole: Dunsmuir at paras 54-55.Moreover, as expressed by Rothstein J. in Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011SCC 61, [2011] 3 SCR 654: 39 ... True questions of jurisdiction are narrow and will be exceptional. When considering a decision of an administrative tribunalinterpreting or applying its home statute, it should be presumed that the appropriate standard of review is reasonableness.

As long as thetrue questions of jurisdiction category remains, the party seeking to invoke it must be required to demonstrate why the court should notreview a tribunal’s

interpretation of its home statute on the deferential standard of reasonableness. 31. Quite frankly, I do not see how it can be intended that a party could “demonstrate” a negative except by way ofargument as a matter of policy or a parading of horrors, so I am not much attracted to this approach. However, I am mindful of this signalfrom our highest court and I support strongly a system of justice that accords pragmatic answers intended to minimize unnecessarylitigation up the ladder. 32.

I will simply note that this issue speaks to me as a voice from the legislature that has imposed a generous (now 60days) time limit for complaints to be filed on an annual process. The question whether the mandatory language is sufficient to define theborders of the ARB’s powers appears on its face to be a jurisdictional issue. It is true that the wording at issue does appear in the samelegislation that creates this and other tribunals.

However, until the Supreme Court imposes a single test on all questions, this one calls outas being beyond the oft repeated caution of Dickson J. not to brand as jurisdictional issues that are doubtfully so: Canadian Union ofPublic Employees, Local 963 v New Brunswick Liquor Corp, (SCC), [1979] 2 SCR 227, [1979] SCJ No 45. 33.

In so stating, I acknowledge renewed cautions against branding issues as jurisdictional when related to preliminary orcollateral questions, or categorical or nominate errors: Halifax (Regional Municipality) v Nova Scotia (Human Rights Commission),2012 SCC 10, [2012] SCJ No 10 at para 34; Dr Q v College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1SCR 226 (at para 22); Dunsmuir at para 35. 34. True jurisdictional questions arise where the tribunal must explicitly determine whether its “statutory grant of powergives it the authority to decide a particular matter” or “when

interpretation of that statute raises a broad question of the tribunal’sauthority”: Dunsmuir at para 59; Nolan v Kerry (Canada) Inc, 2009 SCC 39, [2009] 2 SCR 678 at para 34. 35. On the analysis derived from Pushpanathan: there is no specialized expertise for the ARB to interpret statutory timelimits; the question is highly generalized to the process as amended by the legislature; there is no privative clause at all; and the issuedoes not engage substantive policy considerations.

Put simply, does the ARB have jurisdiction to exercise a discretion or power toconclude that a complaint is time compliant with the legislation by weighing the actions and evidence of intent of a complainant? Does it

have jurisdiction to decide to hear a complaint which was, on its face, made beyond the proper time as set out in the statute? 36 . In the Decision to Grant Leave, Ross J. describes the first issue as whether the ARB erred by incorrectly interpreting sections of statutory

interpretation and comments further that this is “clearly a question of law”. She expressed the issue in that way after applying the three criteria for the granting of leave which may suggest that the legislature intended to narrowly constrain the cases on appeal. Those criteria, including importance and likelihood of success, are informative of the legislative intent to place constraints on the types of issues that will be subject to judicial review and the standard to be applied. 37 . But the decision to refer and the framing of the issue does not mean per force that the standard of review is correctness.

As the ARB cites from Nor-Man Regional Health Authority Inc v Manitoba Association of Health Care Professional , 2011 SCC 59 , [2011] 3 SCR 616 : 35 An administrative tribunal’s decision will be reviewable for correctness if it raises a constitutional issue, a question of “general law ‘that is both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise’”, or a “true question of jurisdiction or vires”.

It will be reviewable for correctness as well if it involves the drawing of jurisdictional lines between two or more competing specialized tribunals.... 36 The standard of reasonableness, on the other hand, normally prevails where the tribunal’s decision raises issues of fact, discretion or policy; involves inextricably intertwined legal and factual issues; or relates to the

interpretation of the tribunal’s enabling (or “home”) statute or “statutes closely connected to its function, with which it will have particular familiarity” ... [Emphasis added.] 38 . I am fully satisfied that the issue here deals with

interpretation of legislative time limits and whether the ARB has been granted authority to exercise a discretion. The

interpretation issue in this case derives from the language of the MGA and to some extent the

Interpretation Act - a statute with which it, no less than other tribunals, may need to be familiar. 39 . This is a question of law. It considers the language by which a statute sets deadlines and consequences for non- compliance which may arise in various contexts beyond the expertise of many tribunals. Arguably, it remains a “true” question of jurisdiction as affecting legislative deadlines. However, Rothstein J. signalled at para 43 of ATA that

interpretation of a statutory provision having a jurisdictional flavour does not automatically trigger a correctness standard of review. In all of the circumstances here, it is prudent to apply reasonableness as the appropriate standard of review. 40 . I find that reasonableness also applies to the issue of unsupportable and unreasonable findings of fact not derived from the whole of the evidence. As well, reasonableness applies to review of the sufficiency of reasons: Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board) , 2011 SCC 62 , [2011] 3 SCR 708 .

ARB Hearing and Decision 41 . Mr. Wood made the following submissions to the ARB (excerpts taken from p. 8, l. 27 to p. 11, l. 4, p. 22, ll. 11 to 20, p. 23, ll. 11 to 13): The postmark is March 9 th because it was actually mailed before the City ever returned any of my multiple calls. My first call to the City was February 14 th . They responded with a “you will be called within five business days”. When those five days expired, I phoned again. They responded with “you will be called back within five business days”.

My last call —... to the City explaining that I was worried about not receiving any calls and missing the deadline, they informed me that I should mail it anyways. The day after I mailed it, I got a call back from the City. We discussed matters over the phone and nothing was resolved...it was mailed on the 9 th ...Somehow it sat somewhere. I don’t think Canada Post is going to spend 14 days to move something across the city. I have never experienced that before. Unfortunately I think it sat on somebody’s desk somehow, somewhere under the 21 st , or the 20 th ...

I phoned on a Friday and I was worried about missing a deadline. And the woman that I talked to said, well you might as well mail it off ... I thought 24 days was more than ample time for the City to respond. When they hadn’t responded, I put it in the mail. I still don’t believe that it took 14 days to get from Canada Post to a City desk. I think somehow or another it’s a City problem that it ended up being opened or looked at on the 21 st . And that’s not something I believe City taxpayers should be punished for...

If they can take 24 days to phone me back, I think they can take 13 days to open their mail. 42 . At the hearing, counsel for the City briefly reviewed the relevant dates, legislation and cases in support of its argument that the ARB did not have discretion to relieve for failure to meet the filing deadline.

Counsel noted that the ARB is an independent body from the City of Edmonton Tax and Assessment Branch, and submitted that based on the evidence, the document was stamped on the date it was received by the ARB officer to whom it was addressed, noting that there was no documentary evidence to support otherwise. 43 . The ARB framed the issue as being whether Wood filed the assessment complaint by the filing deadline of March 14, 2011.

The ARB noted that Wood “indicated that he had attempted to contact the assessor but did not receive a response, and that waiting for the response led to a delay in mailing the complaint form”. At the hearing, Wood questioned the accuracy of the City’s records with respect to receipt of the complaint form. If those records were accurate, it took 12 days for Canada Post to deliver the letter within the City of Edmonton. 44 . The ARB mentioned evidence of relevant dates.

None of the dates was in dispute, except for Wood’s suggestion that the date received stamp might not have reflected the date the complaint arrived at the ARB. The ARB noted that the 7 day deemed service period under the

Interpretation Act was not helpful on the facts of the case. It nevertheless concluded: ... 3) It is clear that the intent of the Complainant was to file the complaint form by the filing deadline. However, due to circumstances beyond his control, either with Canada Post or with the ARB this was not achieved. 4) The intent of the process is to provide the taxpayer with a fair and reasonable complaint mechanism. In this instance, to deny the Complainant the opportunity of a merit hearing for circumstances beyond his control would be to deny the Complainant natural justice. Position of the Parties 45 .

The City’s main argument is that the legislative wording and intention is clear on its face. Each municipality is to manage its own annual assessment process. In order to

schedule a matter for hearing, each complaint must be received to be filed within the time specified. There is no suggestion in the legislation that this entails a qualitative assessment of effort or good intentions; there is an onus on each complainant to file on a specified deadline basis. It is not a system that is structured with flexibility to accommodate unpredictable mail delivery. Alternatives such as courier, personal delivery or electronic filing are all viable options available to property owners. 46 .

The ARB responds that the Court should recognize that the ARB interpreted its power in the context of a risk of denial of natural justice. Upon a review of the surrounding circumstances, it concluded that the complainant had done all that could be expected to make or file his appeal. Alternatively the ARB urges that the

interpretation of the legislation is not clear and the choice made by the ARB was within a range of acceptable outcomes even if the Court may not agree with its

interpretation. Analysis 47 . A review on the reasonableness standard is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. It is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law: Dunsmuir at para 47 . 48 . I begin my analysis by noting that the scope and mandate of ARB proceedings at the preliminary stage under review is to determine compliance with a statutory deadline.

49 . Although this appeal is framed as a question of statutory

interpretation and therefore a question of law, it is necessary to address the factual context in which the

interpretation was effected. 50 . The ARB purported to address the issue as to whether Wood filed the assessment complaint by the filing deadline of March 14, 2011. It is not disputed that the complaint was postmarked March 9 and the deadline was March 14. The only evidence before the ARB was that the complaint arrived at the ARB on March 21, 2011.

I note in this regard that the presumption of regularity provides that official acts are correctly and solemnly done unless the opposite is proven: Lethbridge (City) v Daisley , 2000 ABCA 79 , 250 AR 365 at para 23 , 250 AR 365 , leave denied [2000] SCCA No. 214 , 293 AR 189 . 51 . Section 461(1) of the MGA provides that a complaint must be filed with the designated officer at the address shown on the assessment or tax notice, not later than the date shown on that notice. The ARB recognized that Wood derives no assistance on the facts here from s. 23 of the

Interpretation Act which presumes service 7 days from the date of mailing within Alberta, given that 7 days after the date of mailing was past the deadline. Therefore, the evidence before the ARB established that the complaint was not received by the deadline. 52 . Faced with this situation, the ARB embarked on a consideration of Wood’s intentions and fairness of the process. 53 . Did the ARB err in concluding that it was not compelled to dismiss this complaint if it found that Wood intended to submit the complaint on time, and took sufficient steps to satisfy the ARB of such intention? Statutory Provisions 54 .

Part of discerning the intent of the legislation is to consider the objective or purpose of the sections at issue. In that regard I note:

a) property assessments are an important step in the setting of property taxes in each municipality, and owners are accorded a right to complain annually about the valuation on which the tax rate will be applied;

b) the time limit for complaints was recently extended from 30 to 60 days: s. 309(1)(c);

c) no single method for delivery of complaints is prescribed;

d) only an assessed person or taxpayer may make a complaint: s. 460(3);

e) the prescribed topics of complaint do not include the actual tax rate: s. 460(6);

f) the designated officer has specific time limits after receiving the complaint to provide a copy to the municipality: s. 462(1)(a); and

g) a hearing may proceed if a person who has notice does not attend: s. 463. 55 . So this is a process that is neither vague nor loose - the objective is to consider prescribed issues only (s. 460(5)), render a timely decision with reasons (s. 468(1)) and send it to notified persons within 7 days of the decision (s. 469). The wording of the time limit must be interpreted in this context.

56. The deadline by which the complaint must be made is set by the municipality. It must be prescribed in the assessmentnotice as a date 60 days after the deemed receipt of Notice by the owner. There is no dispute that the March 14 deadline meets thisrequirement derived from s. 309(1); to that extent, I agree with the ARB that not much else turns on the

interpretation of that particularsection. 57. However, the choice and meanings of the words used in the phrase “the date by which a complaint must be made,which date must be 60 days after the assessment notice ... is sent to the assessed person” in s. 309(1)(

c) are informed by the requirementin s. 461(1) that “a complaint must be filed with the designated officer at the address shown on the assessment... notice not later than thedate shown on that notice” [emphasis added]. The reason for consistency in

interpretation is that ss. 309(1)(

c) and 461(1) in this contextare referring to the same step. Since s. 461(1) describes how the complaint is to be made, the two sections should harmonize to avoidabsurd timing conflicts. 58. What neither

section in the MGA provides is that the date set out in the assessment notice (here, March 14) is thedeadline for mailing only, such that there is no requirement for actual receipt by the ARB. But is that a reasonable alternativeinterpretation? 59. In looking at this possibility, I note first that the legislature speaks of “filing with the designated officer at the addressshown” which focuses on the receiving end of the process. It did not make any reference to mailing or postmarks in this context at all.

Itcould have done so, just as it did in s. 341 of the MGA in deeming the date a tax payment to have been received based on the postmarkstamped on the envelope. Similarly, the legislature did not deem receipt by a prescribed number of days after it is sent as it did in s. 337in deeming receipt after 7 days for a tax notice. 60. From its decision, I am unable to identify where the ARB considered in a transparent and justified

interpretation thatit possessed the power to deem compliance in these circumstances. 61. I conclude, based on the legislation, that the ARB could not reasonably interpret the deadline in s. 461(1) as referringto the date of mailing. Instead, what the ARB appears to have done is to invoke principles of fairness and natural justice in order toextend the deadline in this particular case. 62. Under AR 310/2009, provision is made for abridgment or expansion of various deadlines. The time limit for filingcomplaints is not included in any of those provisions (ss. 6, 10, 35, 41).

Section 23 of the

Interpretation Act might provide a viable argument for deeming service 7 days from the date ofmailing within Alberta, however as noted above, 7 days after the date of mailing was past the deadline in this case. 64. Section 467(2) provides that the ARB must dismiss a complaint that was not made within the proper time. 65. I find that nothing in the legislative regime militates in favour of a discretion on the part of the ARB to grant theextension which it granted in this case. Case law 66.

In the absence of any legislative authority, it is important to consider whether the case law applicable toadministrative tribunals may accord some discretion to relieve against this statutory deadline. 67. The Court in Calgary (City of) v Municipal Government Board, 2004 ABQB 85, 353 AR 332 concluded that theterm “sent” in the earlier wording of s. 309 to begin the appeal period meant sent and received. In support of that

interpretation, the Courtrelied on the reasoning in Switzer’s Investments Ltd v Calgary (City), [1999] AJ No 1662, citing Bowen v Council of City of Edmonton(1977), (AB CA), 2 Alta LR (2d) 112, 3 AR 63 (CA) wherein a 30 day limitation period for appeal did not begin torun until the decision in writing was communicated to the affected party. The reasoning that an appeal period cannot properly begin torun until receipt of the decision to be reviewed, or at minimum the 7 days deemed by s. 23 of the

Interpretation Act is entirely logical.

68. The Court of Appeal in Samedan Oil of Canada, Inc v Alberta (Provincial Treasurer) (1993), 1993 ABCA 142, 10 Alta LR (3d) 48, [1993] AJ No 311 upheld a decision in the context of the Alberta Corporate Tax Act, RSA 1980, c A-17that “... a mailed document is not ‘filed’ until it is received and not at the point of mailing”. The Court contrasted the

interpretation fromfederal legislation which expressly stated that: “Anything sent by mail shall be deemed to have been received by the recipient on the daythat it was mailed”. 69. In addition to court decisions, there are prior decisions of ARBs and MGBs which have held that complaints must bereceived by the ARB. These cases reject any power to exercise a discretion to extend the statutory time line. 70.

The ARB urged the Court to apply a test of “substantial compliance” as applied in Edmonton (City) v EdmontonComposite Assessment Review Board, 2012 ABQB 154, [2012] AJ No 224 [Colliers] regarding sufficiency of the contents ofcomplaints. 71. Unlike the circumstances in the line of cases which Colliers follows, however, in the present case there was only oneway to comply with the time requirement for filing - it must have been received for that purpose by the prescribed date. 72.

This brings us to the ground relied on by the ARB in the impugned decision: strict application of s. 467(2) would beunfair in this case because the circumstances were beyond Wood’s control. 73. Section 467(2) provides that the ARB must dismiss a complaint that was not made within the proper time. Theconsequence is unequivocal but is not “...manifestly absurd, or extremely harsh, unjust or capricious”: Boardwalk Reit LLP at para 78. 74. There was no evidence to suggest that Wood was unable to file the complaint prior to his discussions with the City. Infact, he did so. 75.

Furthermore, there is nothing in the evidence upon which the ARB could have reasonably inferred that Woodbelieved that he only needed to post the complaint before the prescribed deadline. All the notices from the City reinforced the need toallow sufficient time for delivery on or before the deadline date and the consequences of failure. By his own evidence he was told on aFriday (March 4) that “...you might as well mail it off” but he did not do so until the following Tuesday (March 8). 76.

The ARB submits that Wood had done all that could be expected to do in order to file his appeal in a timely fashion.If this argument were to be successful, it would potentially apply in all cases where the vagaries of the postal system result in a delay indelivery of complaints. The deadline, of which Wood was given two months notice, was Monday, March 14, 2011. The decision does notreference nor is there any explanation for Wood’s choice to wait 4 or 5 weeks before first trying to contact the City.

Despite the quicklyapproaching deadline, Wood mailed the complaint, apparently by regular mail, in circumstances whereby it was postmarked onWednesday March 9, 2011. 77. The ARB did not expressly consider the fact that Wood, latterly faced with a tight deadline, might have delivered thecomplaint by way of courier, personal delivery or electronic filing. He also might have mailed it by way of priority post, Xpresspost orregistered mail. All of these means of delivery would have provided him with more control by guaranteeing delivery within a certain timeand enabling him to obtain delivery confirmation. 78.

There was no evidence to the effect that Wood was precluded for any reason from delivering the complaint by one ormore of these alternative means so as to ensure compliance with the instructions in the Notice. In the end, he chose a means of deliverywhich was not only uncertain in terms of timing, but which also left him with no documentation to support his argument that Canada Postcould not possibly have taken 12 days to deliver the complaint. 79. I find that the ARB’s conclusion was unreasonable. The ARB is required by the MGA to dismiss out of timecomplaints.

The ARB concluded that a denial of natural justice would result from applying the statutory deadline to Wood’s complaint.Wood had 69 days within which to file his complaint and chose to use the regular mail system several working days prior to the deadline.Even assuming the ARB might extend a deadline for reasons of natural justice in very exceptional cases, it unreasonably concluded that

the circumstances in this case were beyond Wood’s control so as to provide the ARB with discretion not to dismiss the complaint. 80 . Regrettably, the ARB decision here does not explain how it reached the conclusion that it was empowered to exercise a discretion in these circumstances. The Court is required to supplement the decision in assessing sufficiency of reasons and I recognize the sympathetic concerns which may have led to the ARB’s decision. However, I am unable to fashion reasons that can withstand scrutiny so as to place the ARB’s

interpretation within a range of possible outcomes. There is simply no support in the legislation, case law or facts which would assist or rationalize the conclusion reached by the ARB in conflict with prior decisions on this point.

Summary 81 . By any measure, the short reasoning process used by the ARB was not transparent, justifiable or intelligible with respect to the basis for its exercise of discretion. It does not meet the requirements of the MGA for the ARB to purport to extend a mandatory time limit based on a conclusion that the complainant intended to file the complaint by the deadline but that circumstances were “... beyond his control, either with Canada Post or with the ARB...” 82 .

Equally, I can find no basis to place the decision within a range of possible, acceptable outcomes which are defensible in the face of the facts and law to be applied: Dunsmuir para 47 . The language chosen to invoke this time limit simply cannot support the exercise of an unexpressed discretion having full regard to the purpose of the legislation. 83 .

Overall, the Decision of the ARB in this matter must be cancelled, to use the words of s. 470.1, and is referred back; however, there is nothing to be “reheard” since the Court’s direction is that the ARB lacks authority other than to dismiss the complaint under s. 467(2) . 84 . If the parties cannot agree, costs may be spoken to within 30 days of the date of this decision. Heard on the 24 th day of May, 2012. Dated at the City of Edmonton, Alberta this 15 th day of June, 2012. S.D. Hillier J.C.Q.B.A.