Padget v. Edmonton (City), 2013 ABQB 48

Court of Queen ’ s Bench of Alberta Citation: Padget v. Edmonton (City), 2013 ABQB 48 Date: 20130117 Docket: 1203 09922 Registry: Edmonton Between: Donald Padget Applicant - and - City of Edmonton and Assessment Review Board of the City of Edmonton Respondents _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Brian R.

Burrows _______________________________________________________ [ 1 ] Donald Padget seeks leave to appeal from the dismissal by the Assessment Review Board of the City of Edmonton of his appeal from the 2012 municipal tax assessment of his residence in Edmonton. [ 2 ] The Municipal Government Act , R.S.A. 2000, c. M-26, s. 470(5) provides that the Court may grant leave to appeal where the judge hearing the application “ . . . is of the opinion that the appeal involves a question of law or jurisdiction of sufficient importance to merit an appeal and has a reasonable chance of success ” .

[ 3 ] The decision which Mr. Padget seeks to appeal was rendered on May 31, 2012. The Assessment Review Board upheld the assessment of Mr. Padget ’ s residence at $612,500. [ 4 ] Before the Assessment Review Board, in support of his position that this was not a fair and equitable assessment, Mr. Padget presented an appraisal he had obtained from a firm of real estate appraisers. That report indicated that the property was worth $535,000 on July 1, 2011, which was the relevant date. [ 5 ] The appraisal submitted by Mr.

Padget on his appeal contained the following statement under the title “ Scope of the Report ” : Our inspection of the site occurred on May 4, 2012 and therefore, we have provided a retrospective valuation as per our client ’ s request. A Retrospective Value Opinion is defined by the Appraisal Institute of Canada as “ an effective date prior to the date of the report ” . The date of this report is May 7, 2012. The effective date of this valuation is retrospective and it is effective July 1, 2011.

We assume that as of the effective date of our valuation, the subject property was in similar condition as observed on the day of inspection. Our final value is “ QUALIFIED ” to make the reader aware of our assumptions and of the retrospective nature of the valuation. [ 6 ] Later in the report, under the title “ Extraordinary Assumptions & Limiting Conditions ” , the following appeared: Inherent in this retrospective valuation is the assumption that the subject improvements were in similar condition on July 1, 2011 (effective date) as was observed at our inspection on May 4, 2012.

If this is later proven incorrect, our final value would be INVALIDATED. [ 7 ] Mr. Padget presented facts and information in addition to the appraisal in support of his position on the review. He contended before the Assessment Review Board that taking all the relevant information into account, the assessment should be $484,000. [ 8 ] The City provided information in support of the assessment under review. [ 9 ] The Assessment Review Board confirmed the assessment of $612,500. It provided reasons for not being swayed by the information and submissions which Mr. Padget had made. In respect of the appraisal Mr.

Padget had submitted, the Board said: The Board placed little weight on the appraisal report (C-3) as it had been prepared in May, 2012 and was “ qualified ” for reasons that were unclear. [ 10 ] Mr. Padget observes that the reason for the qualification is stated twice in the report, both times, clearly: the appraisal was retrospective. That is, it was based on an inspection made about 10 months after the date for which a value was required. The appraiser assumed that the property was in the same condition on inspection as it had been on the date for which the value was required.

If that was not so, the opinion was invalid. [ 11 ] There was no suggestion in the Board ’ s reasons that the property was not in the same condition in May 2012 as it had been in July 2011. There was no suggestion that 10 months was too long to be looking back. The suggestion that the appraisal was worthy of little weight because it was retrospective, in the absence of a finding that the property was not in the same condition, is mysterious. [ 12 ] Mr. Padget submits that the nature of the qualification and the reason for it were clearly not unclear.

The reason the Board gave for attaching little weight to the appraisal suggests strongly that the Board misapprehended the appraisal.

[13] Whether or not a tribunal has misapprehended important evidence in coming to its decision is a question of law: Harper v. The Queen (SCC), [1982] 1 SCR 2 at 210: The duty of the appellate tribunal does, however, include a review of the record below in order to determine whether the trial Court hasproperly directed itself to all the evidence bearing on the relevant issues. Where the record, including the reasons for judgment, disclosesa lack of appreciation of relevant evidence and more particularly the complete disregard of such evidence, then it falls upon thereviewing tribunal to intercede. Young v.

Meery, 2009 NSCA 47 at para. 20: In my respectful view and for reasons I will now develop, the Chambers judge erred in law by missing, ignoring or misapprehendingmaterial evidence, and by drawing inferences and conclusions from the evidence which rightfully fall within the preserve of the trier offact, at a trial. Housen v. Nikolaisen, 2002 SCC 33 , [2002] 2 SCR 235 at para. 46: We note that in relying on the evidence of Mr. Anderson and Mr. Werner, the trial judge chose not to base her decision on the conflictingevidence of other witnesses. However, her reliance on the evidence of Mr. Anderson and Mr.

Werner is insufficient proof that she"forgot, ignored, or misconceived" the evidence. The full record was before the trial judge and we can presume that she reviewed all ofit, absent further proof that the trial judge forgot, ignored or misapprehended the evidence, leading to an error in law. It is open to a trialjudge to prefer the evidence of some witnesses over others: [page269] Toneguzzo-Norvell, supra, at p. 123.

Mere reliance by the trialjudge on the evidence of some witnesses over others cannot on its own form the basis of a "reasoned belief that the trial judge must haveforgotten, ignored or misconceived the evidence in a way that affected his conclusion" (Van de Perre, supra, at para. 15). This is inkeeping with the narrow scope of review by an appellate court applicable in this case. [emphasis added] Delgamuukw v. British Columbia (SCC), [1997] 3 SCR 1010 at para. 80 per Lamer C.J.: I recently held, in Van der Peet, that these general principles apply to cases litigated under s. 35(1).

On the other hand, while acceptingthe general principle of non-interference, this Court has also identified specific situations in which an appeal court can interfere with afinding of fact made at trial. For example, appellate intervention is warranted "where the courts below have misapprehended oroverlooked material evidence": see Chartier v. Attorney General of Quebec, (SCC), [1979] 2 S.C.R. 474, at p. 493. [14] Mr. Padget’s proposed appeal is on a question of law. In my view the point is of sufficient importance and Mr.

Padget’sprospect of success is sufficiently high as to justify granting him the leave to appeal which he seeks in this application. [15] Mr. Padget submitted that it would be appropriate not only to grant leave to appeal but to deal with the merits of the appeal aswell. [16] The City resisted that position on the basis that the record before the Court does not include a transcript of the hearing beforethe Assessment Review Board. An appeal on the record requires a complete record.

The reasons of the tribunal from which the appealis taken should be reviewed on appeal in the context of the full record of the proceedings. I agree. I decline to deal with the merits ofthe appeal. [17] Mr. Padget’s application is also for judicial review of the Board’s decision. Presumably that aspect of the application isrendered redundant by the granting of leave to appeal. [18] Mr. Padget is granted leave to appeal from the decision of the Assessment Review Board on the question of whether theBoard erred in law by misapprehending the evidence before it, in particular, the appraisal report submitted by Mr.

Padget.

Heard on the 28 th day of November 2012. Dated at the City of Edmonton, Alberta this 17 th day of January 2013. Brian R. Burrows J.C.Q.B.A. Appearances: Donald Padget appeared without counsel Cameron J. Ashmore for the City of Edmonton Kate L. Hurlburt for the Assessment Review Board of the City of Edmonton