Edmonton East (Capilano) Shopping Centres Limited (as Represented by AEC International Inc.) Applicant - v. -, 2013 ABQB 526

Court of Queen ’ s Bench of Alberta Citation: Edmonton East (Capilano) Shopping Centres Limited v Edmonton (City), 2013 ABQB 526 Date: 20130913 Docket: 1103 13687 Registry: Edmonton Between: Edmonton East (Capilano) Shopping Centres Limited (as Represented by AEC International Inc.) Applicant - and - The City of Edmonton; the Assessment Review Board of the City of Edmonton; and the Minister of Justice and Attorney General for Alberta Respondents _ ________________________________________ ______________ Reasons for Judgment of the Honourable Associate Chief Justice J.D. Rooke _________________________________________ ______________ I. Introduction

[ 1 ] The Appellant, an agent for Capilano Shopping Centre (Capilano), appealed the decision of the Assessment Review Board (Board) increasing its assessed value and therefore its payable taxes for the 2011 tax year. In 2011, Capilano was assessed as a community shopping centre, as it had been in past taxation years, but, believing that the assessment was too high, given comparable properties and rental rates, it appealed the assessment.

After it filed its appeal and submissions for the appeal, the City indicated that the assessor had changed its opinion and was now assessing the mall as a “power shopping centre” for the 2011 taxation year. The Board heard the complaint based on the changed assessment, and changed the assessment upwards by over 1/3 – from an assessed value of about $30 million to about $40 million. The governing legislation does not permit a municipality to complain regarding an assessment and does not permit changes to assessment rolls except for errors, omissions or mis-descriptions.

Capilano argued that the Board made a true jurisdictional error in permitting the City to act as a de facto complainant and by considering an assessment that was not properly before it and asked this Court to cancel the decision. II. Executive

Summary of Decision [ 2 ] AEC International Inc., a representative for Edmonton East (Capilano) Shopping Centres Limited (Capilano), appealed the August 2, 2011 decision (Decision) of the Composite Assessment Review Board (Board). The appeal sought to cancel the Decision under s. 470 of the Municipal Government Act , R.S.A., C.

M-26 ( MGA ) on the basis that the Decision was made without jurisdiction since the Board essentially considered a different assessment than the one complained of and because the Board effectively permitted the City of Edmonton (the City) to act as an appellant. [ 3 ] The appeal is allowed, and the Board’s Decision is cancelled and remitted to a new panel of the Board for a hearing de novo .

Capilano is entitled to its costs in such an amount as may be agreed to or failing agreement as may be set by the Assessment Officer, or, if for any needed reason, the Court on further application. [ 4 ] The Board’s Decision allowed the City to increase its assessment during the complaint process, and the Board, in accepting that changed assessment, acted without jurisdiction and made errors of law. Simply put, an assessment by the City of a property for a given year is not subject to amendment by the City during the complaint process, but is rather binding on the City absent agreement of the taxpayer.

In other words, as argued by Capilano, at para 125 of its Brief, the MGA does not allow a municipality to complain about its own assessment and change it upwards, thereby acting as a de facto appellant. The City’s remedy, if an error appears to have been made in the assessment, is to amend the assessment in accordance with the MGA (which it did not do) or leave the assessment as it was and merely render a new assessment, correcting the alleged error, for the next year. It is not allowed to amend the assessment during the process. III.

Facts and Legislation [ 5 ] The Board, at page 2 of its Decision, set out the following: The subject property is an enclosed shopping centre (Capilano Mall) originally built in 1966 and located on the central east side of Edmonton at the corner of 101 st avenue and 50 th street.

This shopping centre is situated on a lot 1,027,820 square feet (23.6 acres) in size and totals 336,991 square feet in building size, comprising 141,670 square feet of anchor tenant space, 185,121 square feet of mixed CRU, and 10,200 square feet of office space. [ 6 ] Under the MGA , the property tax assessment and compliant processes are as follows: 1. An annual assessment of each property is prepared (s. 285 of the MGA ) reflecting the characteristics and physical condition of the property on December 31 of the previous year (2010 in this case) (s. 289(2) of the MGA ); 2.

Assessment notices are prepared and sent to each assessed person before July 1 (s. 308(1) and 310(1) of the MGA ); 3. An assessed person may complain within 60 days after the assessment notice is sent to the assessed person (s. 309(1)(

c) and s. 460 of the MGA ). It is important to note that “A complaint may be made only by an assessed person or taxpayer.” [Emphasis added] (s. 460(3); 4. A local assessment review board has jurisdiction to hear complaints filed under s. 460 (s. 460.1); and

Section 468 sets out the available Assessment Review Board decisions (s. 468).

[ 7 ] The assessed value for the subject property was $31,328,500 for 2011. On March 8, 2011, Capilano filed a complaint requesting that the assessed value be revised to $22,465,000 on the basis that the assessed value of the property was greater than the reasonable estimate of its actual value and inequitable in comparison to other property.

AEC disclosed its evidence to the City and to the Board. [ 8 ] As set out in para 4, 6 and 19 of Capilano’s Brief: Fourteen days before the [Board] hearing and following Capilano’s submission of its written evidence to the Board, the municipal assessor contacted the [Capilano’s] agent and indicated that the [City] would be requesting an increase in the assessment of Capilano Mall based on a change in the assessor’s opinion of how the Property should be classified. [ 9 ] In the previous tax years, including 2011, Capilano Mall had been classified as a “community shopping centre” (Capilano’s Brief, para 5).

Under the new classification it would be a “power center”. [ 10 ] Capilano did not withdraw its complaint, although it indicated that it considered the municipal assessor’s assertion that it would be seeking a change upwards in the assessment as a veiled threat that if it went ahead with the appeal, the result could be an even higher assessment.

The City increased the assessment based on the change in the assessor’s opinion as to how the property should be classified and changed the classification from “community shopping centre” to “power centre”. [ 11 ] At this point, I note that a correction on the assessment roll can only be made for “an error, omission or mis-description” (s. 305); I do not interpret the provision as permitting a correction for a change of opinion.

Moreover, s. 305(5) provides: If a complaint has been made under s. 460 . . . about an assessed property, the assessor must not correct or change the assessment roll in respect of that property until a decision of the [Board] . . . has been rendered or the complaint has been withdrawn. [Emphasis added] [ 12 ] In this case, the City asserts that s. 305(5) is not in issue because the assessment roll was not changed. [ 13 ] The City provided rationale for the assessment change, but this appeal does not relate to the merits of the assessment.

Rather it relates to the jurisdictional and legal analysis employed by the Board. Therefore I will not comment on this rationale, or the lack of it. In the result, the City requested an increase in assessment of Capilano Mall from $31,328,500 to $45,073,000, an increase of approximately 44 percent, based primarily on the change of classification from “community shopping centre” to “power centre” (Capilano’s Brief, para 20). The Board’s Decision allowed an increase in the assessed value of the property from $31,328,500 to $40,795,500 (Capilano’s Brief, para 7). IV.

Issues [ 14 ] Justice Michalyshyn granted leave to appeal under s. 470 of the MGA ( 2012 ABQB 445 ) on two issues (paras 60 and 62): I give leave to appeal on the question of whether the CARB was entitled to proceed on a new assessment which, on the facts as I understand them, supplanted the original assessment which was the subject of Capilano's complaint. Inherent in this question is whether these circumstances are a "change" as contemplated in the legislation. This does not question the CARB's ability ever to increase assessments.

Nor does it raise what procedural fairness issues may arise if the CARB is entitled to proceed. ... I give leave also on what I find arises regarding the role of the City in the proceedings before the CARB. Can the City be a de facto appellant/ de facto applicant? Can it ever? Can it only when it alleges an error or mistake to an existing assessment, but not in the circumstances that exist before me?

[15] The issues stated by Capilano in its Brief (para 11) are somewhat rephrased from the leave application: (

i) Is the . . . Board entitled to proceed on a new assessment supplanting the original assessment which was the subject of thecomplaint made by [Capilano]? (ii) Can the City . . . be a de facto Applicant . . . before a . . . Board, and in what circumstances? [16] In essence, however, the real issue turns on Capilano’s submissions (as set out in para 9 of its Brief) as follows: Pursuant to the complaint regime set out in the MGA, [Capilano] took the position at the hearing that the [Board] was not permitted toconsider the increased assessment once [Capilano] had filed its complaint.

Although an assessor may make corrections to the assessmentroll in certain circumstances, changes are explicitly prohibited in the MGA from being made once a complaint has been filed and thematter is before an assessment review board.

By allowing the City to contest the original assessment by presenting its new assessment,the Board allowed the City . . . to become in effect a de facto complainant, which [Capilano] submits is not permitted under the MGA. [17] However, in my view, the real issue here is singular: Did the Board err when it decided on an assessment that was not thesubject of the complaint before it, and in doing so, permitted the City to act as a de facto complainant, which the legislation expresslydoes not permit? V.

Standard of Review [18] I conclude that both issues, whether considered separately or as two sides of the same question, are “true questions ofjurisdiction” and that the standard of review is correctness. Although, the Supreme Court of Canada has suggested that true jurisdictionalquestions will be rare (Alberta (Information and Privacy Commissioner) v Alberta Teachers' Association, 2011 SCC 61 (ATA), at para39 and 42 and Dunsmuir v New Brunswick, 2008 SCC 9, at para 59), the Court did not eliminate the category.

A true question ofjurisdiction is raised when a tribunal addresses a question not before it or enters into an inquiry without authority (see jurisdiction in thenarrow sense is authority to enter into an inquiry: Service Employees' International Union, Local No. 333 v. Nipawin District StaffNurses Association, (SCC), [1975] 1 S.C.R. 382, at p. 389; Dunsmuir, at para 59). Justice Michalyshyn, in the leaveapplication, held that the standard of review was reasonableness: at paras 14 and 25. I do not challenge that finding in the context of aleave application.

However, having looked at the matter substantively, I find the standard of review to be correctness for the reasons thatfollow. [19] Dunsmuir (at para 34) set two applicable standards, correctness or reasonableness. Capilano argued, relying on Spinks vAlberta (Law Enforcement Review Board), 2011 ABCA 162, para 17, (at Capilano’s Brief para 52-54) that, because the Decision “doesnot provide any discussion on the how the Board came to its conclusion that it was entitled to proceed with the hearing, despite thepreliminary issues of jurisdiction raised by [Capilano]”, there is no basis to defer to reasonableness.

I note that in ATA, decided afterSpinks, the Supreme Court held that the absence of reasons on an issue did not lead inevitably to a correctness standard. [20] However, there are two distinctions between ATA and this case. In ATA, the issue on judicial review had not been raisedbefore the tribunal and the Supreme Court concluded that the Commissioner had implicitly decided that issue by continuing to hear anddecide the matter. Here, Capilano expressly argued before the Board that the revised assessment was not the subject of the complaint andthat the City was acting as a complainant.

The Board did not address that objection as a question of jurisdiction, but merely indicated thatit would consider the submissions as related to the weight to be given to evidence.

I am reluctant, however, in the face of the decision inATA, to conclude that absence of reasons alone sets the standard of review as correctness. [21] Capilano also argued, relying upon Alliance Pipeline Ltd. v Alberta (Minister of Municipal Affairs) 2006 ABCA 9, at para38, and Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 , [2011]SCJ No. 62, at paras 13 and 22, (at para 61): “[A] total lack of reasons also suggests no deference be given”.

However, in ATA and inNewfoundland Nurses, the Supreme Court emphasized that the absence of reasons or the inadequacy of reasons does not change thestandard of review. As noted, in ATA the Court looked to “implicit reasons”, and in Newfoundland Nurses the Court stressed (at para12) that a reviewing court should look to supplement reasons before subverting them. Again, the presence or adequacy of reasons cannotdetermine the standard of review.

[22] Capilano (at para 65 of its Brief) argued that all parties to a municipal taxation are “entitled to a correct

interpretation of theMGA to ensure their rights are protected”: Alliance Pipeline, at para 44. However, given the Supreme Court’s more recent discussion ofthe standard of review when a tribunal interprets its home legislation, I do not accept this argument. [23] Capilano further argued that “fairness” favours a correctness standard.

While I agree with Capilano’s sentiment that a processintended to give a taxpayer a hearing should not permit a threat of an increase in taxation to operate to dissuade the taxpayer frompursuing an appeal (para 81 of Capilano’s Brief), fairness does not drive the standard of review analysis. [24] In my view, it is necessary to apply the analysis set out in Dunsmuir: first, consider whether other decisions have adequatelyaddressed the standard or review for this tribunal on this type of question, and second, if not, to conduct the more detailed analysis basedon the lack of a privative clause, the nature of the question, the purpose of the legislative scheme, and the Board’s relative lack ofexpertise in relation to the Court on the question at issue. [25] The Board and the Respondents asserted that the standard of review is reasonableness, as determined in AssociatedDevelopers Ltd. v Edmonton (City) , 2011 ABQB 592 (at para 55).

However, the nature of the question in Associated Developers,whether the Board applied the correct test, is very different than the question here - whether the Board had the jurisdiction to deal with adifferent assessment than that which was complained of and whether it could effectively permit the City to be a de facto complainant. [26] The Board further argued that it was interpreting its home legislation and therefore is entitled to deference. [27] While a determination of the Board’s jurisdiction involves

interpretation of the MGA, that

interpretation provides contextonly. The determination of jurisdiction is not a question of statutory

interpretation, but of legislative intent (Union des employés deservice, local 298 v. Bibeault, (SCC), [1988] 2 SCR 1048, at para 120; positively referenced in Halifax (RegionalMunicipality) v Nova Scotia (Human Rights Commission), 2012 SCC 10, at para 34; Smith v. Alliance Pipeline Ltd., 2011 SCC 7, atpara 96). The Court in Dunsmuir noted (at para 31): As noted by Beetz J. in U.E.S., Local 298 v Bibeault, (SCC), [1988] 2 S.C.R. 1048, at p. 1090, "[t]he role of thesuperior courts in maintaining the rule of law is so important that it is given constitutional protection".

In short, judicial review isconstitutionally guaranteed in Canada, particularly with regard to the definition and enforcement of jurisdictional limits. [28] In Dunsmuir, the Court indicated (para 59-61) that no deference is required in the following situations: Administrative bodies must also be correct in their determinations of true questions of jurisdiction or vires. ..."Jurisdiction" is intended inthe narrow sense of whether or not the tribunal had the authority to make the inquiry.

In other words, true jurisdiction questions arisewhere the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter. ... As mentioned earlier, courts must also continue to substitute their own view of the correct answer where the question at issue is one ofgeneral law "that is both of central importance to the legal system as a whole and outside the adjudicator's specialized area of expertise”...

Questions regarding the jurisdictional lines between two or more competing specialized tribunals have also been subject to review on acorrectness basis. ... [29] While, Capilano noted (para 68 of its Brief), questions of law within the home statute of a tribunal and determined by thattribunal are often reviewed on a reasonableness standard, when there is a fundamental jurisdictional issue the standard must becorrectness. [30] Undertaking the more detailed analysis reveals that: 1. There is no privative clause;

2. The nature of the question is related to whether the Board had the authority to hear the complaint of a different assessment that effectively rendered the City to be a complainant – a question of jurisdiction; 3. The Board lacks expertise in determining jurisdiction in contrast to the Court’s expertise. [ 31 ] Each of these factors favours no deference. The purpose of the legislative scheme may suggest some deference, but overall, I conclude that the standard of review is correctness. VI. Analysis 1.

Capilano’s submissions [ 32 ] Capilano noted (Capilano’s Brief at para 12) that the Board did not address the jurisdictional question and, as a result, submitted that the Board made a jurisdictional error and an error of law. Further, Capilano similarly, argued (Capilano’s Brief paras 12 - 13): Capilano submits that the [Board’s] Decision is fundamentally flawed and that the [Board] lacked the jurisdiction to consider the increased assessment made by the City . . . pursuant to the process and procedures set out in the MGA in its related regulations. . . .

Allowing the City . . . to revise an assessment after a complaint had been filed effectively allows new issues to be raised by municipality at any time and therefore prejudices taxpayer’s ability to effectively challenge an assessment. . . . [ 33 ] I discuss Capilano’s submissions in more detail in my analysis

section of these Reasons. 2. City’s submissions a. Facts [ 34 ] The City takes issue with a number of the facts alleged by Capilano, but most of those alleged mischaracterizations of the facts are irrelevant to the questions at issue, and it is important to note that this is an appeal on a question of law, not mixed fact and law. [ 35 ] The City suggested that the assessor changed the assessment because it discovered an “error” that therefore required an increased assessment.

In my view, the City is being disingenuous in suggesting that the assessment of the mall as a “community shopping centre” was an error within the meaning of s. 305 of the MGA . [ 36 ] The City also asserts that Capilano never objected to the Board’s jurisdiction to increase an assessment. This is correct, as far as it goes, but as Michalyshyn J noted in the leave to appeal the decision (at para 42-43,48), Capilano agreed that the Board could increase assessments for errors or mistakes in the original assessment, but continued to argue that the increase here was one based on an entirely new assessment.

The City also argued that Capilano agreed that the Board had the jurisdiction to increase the assessment, but again that ignores the context of Capilano’s jurisdictional complaint. It argued not that the Board can never increase an assessment, but that it cannot do so by permitting a municipality to effectively act as a complainant and have the Board decide on an increase based on a changed assessment that was not changed because of error, omission or mis-description. [ 37 ] The City also argued that at no point was the assessment roll changed and therefore s.305 of the MGA was not triggered.

Technically, there was no attempt to change the assessment roll after the complaint was made, something prohibited under s. 305(5), but effectively that was what the City was attempting to do – change the assessment. Its success before the Board eventually would lead to a change to the assessment roll (s. 477) which requires the municipality to change the assessment roll to reflect the Board’s decision. b. New assessment [ 38 ] The City relies on a number of Municipal Government Board (MGB) decisions which held that the Board may change an assessment by either increasing or decreasing an assessment.

In Edmonton (City) v Army & Navy Department Stores Ltd ., [2002] AMGBO 126, the MGB held that the plain meaning of the term “change” means that an assessment review board can increase or decrease (para 112).

The MGB went on to discuss the interplay of the various sections of the MGA , concluding that s. 305 cannot be used to correct an error after a Board decision, and that during a complaint or appeal an assessment roll can only be amended after the decision of the ARB or MGB. [1] [ 39 ] This Court dismissed the judicial review application of that decision in Army & Navy Departments Stores Ltd v Edmonton (City) , 2003 ABQB 656 on the basis that the issues had become moot.

It is, however, important to note that Hillier J commented on the potential chilling effect of permitting an increase recommended by a municipality, and concluded that this concern would be better addressed in a factual context where the issue was not moot.

[40] In Ag Pro Grain Management Services Ltd v Lacombe (County), 2006 ABQB 351 Clark J accepted the MGB’s analysis inArmy & Navy and held that the Board could raise assessments. In that case, the issue before the assessment review board was: what wasthe appropriate method of assessment, including whether constructions costs should be used and what the appropriate ratio of machineryto structure should be – complex areas requiring particular expertise. The question of the appropriate assessment method was the originalquestion underlying the complaint.

Clark J accepted as reasonable the MGB’s argument that the MGA should be interpreted as permittingit to increase, as well as decrease, assessments in addressing the question before it. But the issue before Clark J was not whether amunicipality could change the basis of the assessment within the complaint process.

In my view, Ag Pro is clearly distinguishable. [41] Capilano did not argue that the Board cannot increase assessments, but that the Board cannot permit a municipality to changean assessment and essentially act as a complainant. [42] The City argued that if Capilano’s argument is correct, then a municipality could never change an assessment when a mistake,omission or mis-description was discovered, if there was an ongoing complaint. In my view, that misconstrues the purpose of s. 305,which provides for correction, not a re-assessment. Because the issue here is a change in the basis of an assessment, the

interpretation ofs. 305 is not directly raised. However, in my view, s. 305 is akin to a “slip rule”. If the City wishes to change its assessment and changethe category of property, it can do so in the following tax year. The question of whether Capilano is a “community shopping centre” or a“power centre” does not fall within this section. 3. My analysis a. Did the Board have jurisdiction to proceed on new assessment ? [43] I agree with the conclusion urged by Capilano. [44]

Section 305 of the MGA does not permit the assessment roll to be amended and only provides for it to be “correct[ed]” wherethere is “an error, omission or mis-description” none of which are applicable here (s. 305(1)(5) of the MGA). Under s. 305(5), evenwhere, in addition to a correction, a “change” is made, it must not be made until a decision of the Board. Again that did not happen here. [45] It is also clear to the Court that the consideration of the changed assessment had very specific consequences.

Capilano put itthis way (Brief para 26): . . . the [Board] states that the change in the classification of Capilano Mall constituted the basis for increasing the assessment . . . . [46] It is also to be noted that s. 305(5) and (6) were new as of 2009 (c. 29, s. 7) .

Thus, the City has done the very thing it is nowspecifically prohibited from doing under s. 305(5) and the Board failed to give regard to those provisions. [47] The net result, as stated by Capilano in its argument (Brief para 37), is that: . . . no one other than an assessed person or taxpayer may file a complaint, and once that complaint has been filed no further amendmentsmay be made to the assessment roll with respect to any property under complaint. [48] This

interpretation is also reflected in the Matters Relating to Assessment Complaints Regulation, Alta Reg 310/2009,(MRAC) which provides in s. 9(1) that “a . . . board must not hear any matter in support of an issue that is not identified on the complaintform.” [Emphasis added] In this case there was nothing in the complaint form that justified the re-assessment. [49] Having regard to s. 467(1) and 460(5) of the MGA, it is clear that the complaint was only about the assessment, not about areclassification which is what the City purported to do. [50] Further in support, as argued by Capilano, at paras 85 to 89 of its Brief, is the proposition that “an assessor cannotfundamentally change [the assessment] position . . . once the taxpayer has proceeded with a complaint, absent the assessor’s own right ofappeal”: Orange Properties Ltd. v Winnipeg (City) Assessor, (MB CA), [1996] 107 Man R (2d) 278, at para 21; seealso Winnipeg (City) Assessor v WRE Developments Ltd, [1995], MJ No 133 (CA); 79912 Manitoba Ltd. v Winnipeg (City) Assessor,[1998] MJ No 589 (CA); and New Holland Canada Ltd. v Winnipeg (City) Assessor, 2000 MBCA 65, at para 9.

I agree with Capilanothat the principles of Orange Properties, applied to the Alberta legislation, would suggest that “an assessor should not generally bepermitted to raise new issues once the complaint process has begun because of its highly prejudicial impact on the taxpayer”, a matter, as

noted above, that is re-enforced in s. 9 of the MRAC regulation and

Section 5 of the complaint form itself. In support see also PrinceAlbert (City) v Saskatchewan Assessment Management Agency, [2009] SJ No 264, at paras 5-7, (CA); Newterm Ltd v St. John’s(City), [1991], NJ No. 261 (SLTD), at pp 7-9 and Petro-Canada v Canada, 2004 FCA 158, at para 69. [51] Sulyma J in Canadian Natural Resources Ltd v Wood Buffalo (Regional Municipality), 2012 ABQB 177, at para 166,asserted (in obiter): Nevertheless, I do not think that the Municipality can seek a further increase in the assessment amount before the CARB.

While I agreethat the word "change" in s. 467(1) of the MGA implies both an upward and a downward adjustment, s. 460(3) expressly provides thatonly a taxpayer or an assessed person is entitled to make a complaint to the CARB. A complaint belongs to the taxpayer, not theMunicipality. It gives the taxpayer an opportunity to demonstrate what the correct number should be: CARB 007-2010/P at 9. TheMunicipality cannot then come in and ask the CARB to change the assessment to an altogether different number; it can only defend theassessed amount as correct.

This reading of the legislation addresses concerns expressed by Rothman J. in Les Immeubles BP Ltee vVille D'Anjou et al(1978), 4 MPLR 1 (Que SC), at para 21: I find it very difficult to conceive that the Legislature, in providing a procedure of review in favour of dissatisfied ratepayers, would haveintended that these ratepayers could find themselves penalized for having exercised their rights by having to face a decision of[increasing the assessment] and in respect to which the municipalities might not even have a right to complain had the ratepayers notfiled complaints. [52] I agree.

A CARB may increase an assessment, but only within the context of the complaint filed by the taxpayer, not as anattempt by the municipality to do indirectly what it cannot do directly – complain about an assessment to the Board. [53] In conclusion on this first issue, I agree with the argument of Capilano, at para 100, that: Once the complaint was filed, no further changes or new assessments should have been permitted until the . . . Board had rendered itsdecision. This is the plain language of section 305(5).

The [Board] did not have the jurisdiction to consider the [City’s] request toincrease the assessment of Capilano Mall and as such the [Board’s] Decision to proceed with the request to supplant the originalassessment with the new assessment constitutes an error in law. b. Is the City a de facto Appellant? [54] Capilano started this argument (paras 101 and 103 of its Brief) by pointing out that: . . .only an assessed person or a taxpayer has the right to file a complaint.

Municipalities or assessors are not entitled to appeal anassessment. . . . [Capilano] takes the position that by requesting to increase the assessment of Capilano Mall after a complaint had been filed, the City . . .and the Assessor are attempting to appeal the original assessment, which they are prohibited from doing under the MGA.

See Harris v Minister of National Revenue, (CA EXC), [1964], 64 DTC 5332 at pp 9-10. [55] Capilano also relied upon R v Scheller, (FC), [1976], 1 FC 480, at paras 26-27, for the proposition (para105) “that a statutory delegate may not do indirectly what they are prevented from doing directly”, noting, in the quotation, that theperson with a statutory role to set an assessment is “bound by his own assessment”.

See also: Sedgewick Coop Association Ltd vCanada, (FC), [1984], 2 FC 85, at pp 5 and 10; and Petro-Canada v Canada 2004 FCA 158, at paras 24 and 32; andTeck-Bullmoose Coal Inc v British Columbia (Commissioner for Mineral Tax), [2000], B.C.J. No. 1957 (B.C.S.C.). [56] Les Immeubles BP Ltée v Ville d’Anjou (1978) 4 MPLR 1, at para 21 (QSC) (cited by Sulyma J in Wood Buffalo), sets outpolicy rationale for not being able to appeal without explicit statutory authority, and certainly not being able to appeal indirectly in thefollowing words:

I find it very difficult to conceive that the Legislature, in providing a procedure of review in favour of dissatisfied ratepayers, would have intended that these ratepayers could find themselves penalized for having exercised their rights by having to face a decision of [increased the assessment] and in respect of which the municipalities might not even have a right to complain had the ratepayers not filed complaints.

Such a procedure, apart from the obvious abuses which it would invite [ . . . ] would certainly discourage some ratepayers from exercising the rights granted to them under that section. [ 57 ] This principle has been followed and supported in Harvard Realty Ltd v Director of Assessment in Halifax (City of) , [1979] NSJ No. 791 and Oxford Properties Canada Ltd v Calgary (City), [1995] AAABO No. 54, at paras 18-19, 32-33, which, Capilano argued (para 116 of the Brief) “found that a complaint filed by a taxpayer crystalized the matters which were before the Board and did not permit the assessor to later raise separate issues or mistakes with the assessment.” See also Wood Buffalo , at para 166 (Sulyma J).

Wood Buffalo interprets the word “change” in s. 467(1) as implying “both an upward and a downward adjustment”, but also found that s. 460(3) expressly provides that only a taxpayer or an assessed person is entitled to make a complaint. Sulyma J added: “A complaint belongs to the taxpayer, not the Municipality. . . . It can only defend the assessed amount as correct”.

See also Newterm and Prince Albert . [ 58 ] As did Michalyshyn J, I find that the 2010 amendments to the MGA suggest a different approach than permitting a municipality to ask for an increase so long as the process complies with the strict requirements of fairness as set out in Ag Pro . [ 59 ] In the result, I agree with Capilano’s arguments, at para 123 of the Brief, that: “[u]nder the current regime there is no ability for the City to act as a de facto appellant. . . . Accordingly, the [Board’s] allowance of the City to effect a new assessment constitutes an error of law”. VII.

Conclusion [ 60 ] The appeal is allowed, cancelling the Decision of the Board and remitting the matter to a new panel of the Board for a hearing de novo . Capilano is entitled to its costs in such an amount as may be agreed to or failing agreement as may be set by an application to the Assessment Officer, with further direction by the Court on further application as necessary. Heard on the 12 th day of February, 2013. Dated at the City of Edmonton, Alberta this 13 th day of September, 2013. J.D. Rooke J.C.Q.B.A. Appearances: Gilbert J.

Ludwig for the Applicant Cameron Ashmore (The City of Edmonton) for the Respondent

Kate Hurlburt (Assessment Review Board of The City of Edmonton) for the Respondent