Calgary (City) v Resman Holdings Ltd, 2014 ABQB 670

Court of Queen ’ s Bench of Alberta Citation: Calgary (City) v Resman Holdings Ltd, 2014 ABQB 670 Date: 20141105 Docket: 1201 15911 Registry: Calgary Between: The City of Calgary Applicant - and - Resman Holdings Ltd and the Local Assessment Review Board of the City of Calgary Respondents _ ________________________________________ ______________ Memorandum of Decision of the Honourable Madam Justice G.A. Campbell _________________________________________ ______________ I.

The Application [ 1 ] The Applicant, The City of Calgary ( The City ), seeks leave to appeal Decision 2407/2012-P (the Decision ) of the City’s Local Assessment Review Board ( LARB ) pursuant to section 470(1) of the Municipal Government Act , RSA 2000, c M-26 (the MGA ) on the grounds that the LARB erred in law or jurisdiction. [ 2 ] For the reasons that follow, leave to appeal is denied. II. Background

[ 3 ] At issue are 2012 property assessments and amended property assessments prepared by the City’s assessor on two vacant residential lots located in The City (the Subject Properties ) and entered on the 2012 Assessment Roll. [ 4 ] On May 15, 2012, the LARB heard Resman Holdings Ltd’s ( Resman ) complaints about annual “assessment amounts” (the First Hearing ), specifically, the assessed values of the Subject Properties set out in their respective 2012 annual assessment notices (the Original Assessments ). The two Subject Properties were part of a larger group of 11 properties in issue during the First Hearing.

The complaint involved a disagreement over the assessment amount given certain topographical and cost to cure issues which arguably impacted the market value of the 11 properties. On June 15, 2012, the LARB issued a decision confirming the values used by The City in the Original Assessments for each property, including the Subject Properties (the First Decision ). [ 5 ] During its preparation for the First Hearing, The City realized it had erred in its assessment calculations of the values set out in the Original Assessments. The City did not seek to rectify or discuss those errors during the First Hearing.

The City discovered that the Subject Properties, which were two single residential lots of over an acre, were not raw developable lots as originally believed, but serviced lots. Proceeding with that mistaken belief, The City had prepared the Original Assessments erroneously applying the “over-an- acre rate” to the Subject Properties, which is the rate to be applied to raw developable land, not serviced land.

The result was that the Subject Properties received greatly reduced assessed values compared to other similar properties on the street. [ 6 ] The City believed amendments to the Subject Properties assessed values were required to correct what it saw as inequitable assessments. [ 7 ] After the LARB issued the First Decision, two amended assessments notices (the Amended Assessments ) were issued that corrected the errors.

The Amended Assessments re-assessed the properties using the “serviced” property assessment rate as opposed to the “raw developable” property assessment rate, resulting in an overall $2,628,000 increase to the assessed market values of the Subject Properties. This represented an aggregate increase of approximately $16,000 in property taxes. [ 8 ] Resman filed complaints on the Amended Assessments. [ 9 ] During the November 12, 2012 LARB hearing of Resman’s complaints (the Second Hearing ), Resman raised a preliminary issue. Resman contended that The City had no jurisdiction to issue the Amended Assessments.

Resman argued that because the LARB’s First Decision decided the assessment amounts of the Subject Properties for 2012, The City violated

section 477 of the MGA by issuing Amended Assessments from those amounts decided by the LARB in the First Decision. [ 10 ] In response, The City argued that because the Original Assessments were confirmed and not corrected or changed by the LARB’s First Decision,

section 305 of the MGA and, in particular, subsections (1), (5) and (6) gave The City the authority to correct any error in the assessed values in the Original Assessments in the same year and issue the Amended Assessments. The City also argued that the Second Hearing was not a re-hearing but a fresh hearing on a new and separate complaint. Specifically, the Second Hearing required the LARB to consider the Amended Assessments based on a new argument grounded in equity.

In comparison, at the First Hearing, the LARB considered Resman’s complaints about the Original Assessment amounts, which focused on two different arguments – cost to cure and topography. [ 11 ] In the Decision, the LARB addressed the jurisdictional issue of whether it had the authority to rehear a complaint previously heard and decided during the First Decision. It found that no change had occurred in the factual circumstances of the Subject Properties between the First Hearing and the Second Hearing.

The LARB then held that because the First Decision determined that no change was to be made to the Subject Properties’ assessed values, “there is now a mandatory obligation for [The City] to reflect that decision on its assessment roll”: para 9. [ 12 ] The LARB concluded that The City was asking it to decide the same issue – assessment amounts – a second time, or as the LARB phrased it, “to reconsider the assessments for the [S]ubject [P]roperties which [The City] asked the Board to confirm at the [First Hearing] and reflected in its [Decision]”: para 11.

The LARB noted that “the time to bring forward the purported errors in the [Original Assessments] of the two [S]ubject [P]roperties was during the original hearing” and that “an adequate review by [The City] … should have identified any problems with the assessment calculations of the two [S]ubject [P]roperties …”:para 10. [ 13 ] The LARB found that there was no provision under the MGA giving it the authority to rehear taxpayer complaints, and that to allow The City to issue the Amended Assessments in these circumstances would amount to a denial of natural justice to a taxpayer complainant: The board finds no express authority for the board to rehear complaints.

Consequently, the board has no jurisdiction to rehear these two current complaints. Without such express authority and under similar circumstances, that is, the issuance of Amended Assessment Notices following a decision of the board, a complainant would be denied the opportunity to be heard, a violation of natural justice. The board considers that it was not the intention of the legislators to deny a Complainant the right to complain and a subsequent denial of the right to be heard.

There comes a point in time when finality is achieved and that occurred when [the First Decision] was issued: para 12. [ 14 ] In the result, the LARB concluded in the Decision that it had no jurisdiction “to rehear matters previously decided” and it would not “rehear” the complaints on the Amended Assessments. The LARB reinstated the Original Assessments for the Subject Properties as had been decided in the First Decision. III. GROUNDS FOR APPEAL [ 15 ] The City’s leave to appeal can be fairly distilled down to two broad questions:

a) Did the LARB misinterpret sections 305 and 477 of the MGA ? Specifically, did the LARB err in law or jurisdiction when it found that the hearing of complaints on the Amended Assessments was a “rehearing” of a complaint and that it therefore lacked jurisdiction to

hear the complaint or otherwise deal with the Amended Assessments?

b) Did the LARB err in law by making findings of fact for which there was no supporting evidence, disregarding relevant evidence or making irrational inferences of fact? IV. APPLICABLE LEGISLATION [ 16 ] The following sections of the MGA are applicable to this leave application. [ 17 ] According to section 453(1)(a) “assessment notice” includes an amended assessment notice and a supplementary assessment notice. “Assessment” is defined in section 284(1)(

c) as meaning “ a value of property determined in accordance with this Part [Part 9: Assessment of Property] and the regulations.” [ 18 ]

Section 305 provides as follows:

(1) If it is discovered that there is an error, omission or misdescription in any of the information shown on the assessment roll, (

a) the assessor may correct the assessment roll for the current year only, and (

b) on correcting the roll, an amended assessment notice must be prepared and sent to the assessed person. […]

(5) If a complaint has been made under

section 460 or 488 about an assessed property, the assessor must not correct or change the assessment roll in respect of that property until a decision of an assessment review board or the Municipal Government Board, as the case may be, has been rendered or the complaint has been withdrawn.

(6) Despite subsection (5), subsection (1)(

b) does not apply if the assessment roll is (

a) corrected as a result of a complaint being withdrawn by agreement between the complainant and the assessor, or (

b) changed under

section 477 or 517. [ 19 ]

Section 460 deals with assessment complaints. The complaints in both the First Hearing and the Second Hearing were made pursuant to

section 460 of the MGA . Section 460(3) provides that only a taxpayer or an assessed person may bring a complaint.

Section 460.1(1) provides a LARB with the jurisdiction to hear complaints about any matter referred to in section 460(5), which matters include: the description of a property; an assessment; an assessment class; the type of property; and, the type of improvement. [ 20 ] Finally,

section 477 of the MGA provides: The municipality must make any changes to its assessment roll or tax roll, or both, that are necessary to reflect the decision of an assessment review board. V. ANALYSIS [ 21 ] Pursuant to section 470(1) of the MGA , a LARB decision may be appealed to the Court of Queen’s Bench on a question of law or jurisdiction, with leave of the Court. Section 470(5) requires an applicant, in this case The City, to satisfy three requirements: 1. the appeal involves a question of law or jurisdiction; 2. the issue(

s) on appeal is (are) of sufficient importance to merit an appeal; and 3. the appeal has a reasonable chance of success. [ 22 ] I address each question for which The City seeks leave separately. However, prior to addressing the arguments of the parties, I outline the legal principles developed through the existing jurisprudence. Each of the errors that The City alleged were made by the LARB was reviewed with these principles in mind, in determining whether the requirements for leave have been met. a.

The question must be one of law or jurisdiction [ 23 ] To satisfy the section 470(5) requirements, The City must first demonstrate that the question is one involving an error of law or jurisdiction or raise a question of law or jurisdiction, as these are the only questions that can be the subject of an appeal. [ 24 ] If the question on appeal raises questions of fact or of mixed fact and law, the analysis ends there, and there is no need to consider the remaining two elements of the test.

If a pure legal question cannot be extricated from questions of fact and questions of mixed fact and law, then leave to appeal will not be granted on that question: Alberta (Workers’ Compensation Board) v Alberta (Workers’ Compensation Board Appeals Commission) , 2005 ABCA 276 , 371 AR 318 at paras 27-28 [ WCB ]. [ 25 ] It is not enough to simply identify an error of law or of jurisdiction. It must be shown that the alleged error of law or of jurisdiction would have also affected the result.

If the alleged error would not affect the result, then the test for leave is not satisfied: Globexx Properties Ltd v Edmonton (City) , 2011 ABQB 464 , 523 AR 204, at para 38 .

[26] The Supreme Court of Canada provided guidance on characterizing the nature of questions before courts and tribunals:Canada (Director of Investigation & Research, Competition Act) v Southam Inc, (SCC), [1997] 1 SCR 748 at para 35[Southam]: ... questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took placebetween the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests. [27] The Supreme Court of Canada has made clear that a tribunal will make an error of law if it does not consider certain evidencethat the particular legal test requires it to consider, because then the tribunal has effectively applied the wrong law: Southam at para 39. [28] Further, an error of law arises “if a wrong legal principle is used in the application of the law to the facts, or in the exercise ofdiscretion”: Altus Group Ltd v Calgary (City) (Composite Assessment Review Board), 2011 ABQB 739, 528 AR 138 at para. 21 [Altus].Conversely, the application of a correct legal test to a set of facts or whether the facts satisfied the legal test are questions of mixed factand law: WCB at paras 21-22. [29] A question as to the correct meaning of a term in the MGA is a question of law: Edmonton (City) v Edmonton (City)Composite Assessment Review Board, 2012 ABQB 118 at para 33. [30] The Supreme Court of Canada has also provided guidance on identifying true questions of jurisdiction: Dunsmuir v NewBrunswick, 2008 SCC 9, [2008] 1 SCR 190 at para 59 [Dunsmuir]: …true jurisdiction questions arise where the tribunal must explicitly determine whether its statutory grant of power gives it the authorityto decide a particular matter.

The tribunal must interpret the grant of authority correctly or its action will be found to be ultra vires or toconstitute a wrongful decline of jurisdiction…. [31] Further, a jurisdictional error may arise from a tribunal making findings of fact when there is no evidence or, where there issome evidence, “if the vast wealth of the evidence supports a contrary finding”: Gerard Developments Ltd v Parkland (County), 2010ABCA 52 at paras 4 and 9. b.

The issue must be of sufficient importance [32] The Court determines whether the questions before it are of sufficient importance to merit an appeal on objective grounds,and not on whether the questions are of subjective importance to the applicant: 845971 Alberta Ltd v Grande Prairie (City) (Subdivision& Development Appeal Board), 2010 ABCA 135 at para 8. [33] In determining whether an issue is of sufficient importance, the Court considers whether there is jurisprudential value inresolving the question, whether there is something novel or unsettled about the question, or whether the question has wide-rangingimplications.

There must be something more than “error correction” of a single fact specific situation for leave to be granted: R v TerrocoIndustries Ltd, 2004 ABCA 159, 348 AR 96 at paras 18-19. c.

The appeal must have a reasonable chance of success [34] An applicant seeking leave to appeal need only establish that it has a prima facie case in demonstrating that the appeal has areasonable chance of success: TransCanada Keystone Pipeline Ltd Partnership v Alberta (Designated Linear Assessor), 2011 ABQB 460at para 32 [TransCanada Keystone]. [35] An application for leave does not consider the merits of the appeal: TransCanada Keystone at para 33. [36] In determining whether there is a reasonable chance of success on appeal, it is necessary to consider the applicable standard ofreview, being either correctness or reasonableness: Altus at para 53. [37] Reasonableness is a deferential standard that focuses on justification, transparency and intelligibility in the decision-makingprocess, and whether the decision is within a range of possible, acceptable outcomes that are defensible in regards to the facts and thelaw: Dunsmuir at para 47. [38] Correctness gives no deference to the decision maker.

The reviewing court makes its own decision on whether the tribunal’sdecision was correct in law: Dunsmuir at para 50. [39] As a general rule, this Court has applied the correctness standard with respect to

interpretations of the MGA or of a bylaw.However, greater deference is given to LARB decisions when the

interpretation engages the LARB’s enabling statute or expertise, or isapplied to the facts: Edmonton East (Capilano) Shopping Centres Limited v Edmonton (City), 2013 ABQB 526, 570 AR 208 [Capilano]at para 29-317. [40] Moreover, in Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 SCR654, the Supreme Court of Canada summarized the proper approach to take in assessing whether the applicable review is one ofcorrectness, cautioning that “ ... unless the situation is exceptional ... the

interpretation by the tribunal of “its own statute or statutesclosely connected to its function, with which it will have particular familiarity” should be presumed to be a question of statutoryinterpretation subject to deference on judicial review”: para 34. [41] With these principles in mind, I turn to the grounds for appeal in this case. Ground One: Did the LARB misinterpret sections 305 and 477 of the MGA?

Specifically, did the LARB err in law or jurisdiction when it found that the hearing of complaints on the Amended Assessments was a ‘rehearing’ of a complaint and that it therefore lacked jurisdiction to hear the complaint or otherwise deal with the Amended Assessments? a.

Is this question one of law or jurisdiction? [ 42 ] When read together, these two questions address the ability of a municipality to issue an amended assessment and the corresponding jurisdiction of the LARB to hear a complaint on the amendment. [ 43 ] The City submits that the LARB made errors of law because it misinterpreted and misapplied sections 305 and 477 of the MGA .

It submits that the LARB committed a jurisdictional error by refusing to hear the merits of Resman’s complaints on the Amended Assessments for reason that hearing those complaints would be a “rehearing” for which it had no authority to do so under the MGA . [ 44 ] The City’s argument is that the LARB failed to apply a purposive analysis when interpreting the assessment provisions in the MGA , and finding that what was before it was a rehearing for which it had no jurisdiction to hear.

These failures, according to The City, resulted in the LARB misinterpreting and misapplying provisions of the MGA and committing a jurisdictional error by refusing to hear the merits of a taxpayer’s complaint. [ 45 ] Resman submits that the issues raised by The City can be reduced to one question: whether the LARB was entitled to find that what was before it was a re-hearing of a decided question (a question of fact), and whether the legislation allowed the LARB to reconsider its prior findings (an application of the legislation to the factual findings).

Resman points out that there is no provision in the MGA giving the LARB jurisdiction to conduct a rehearing or reconsider its decision. It contends that therefore this is a question of the application of the MGA to the facts, which is a question of mixed law and fact, and therefore does not meet this requirement for leave to appeal. [ 46 ] I do not accept Resman’s arguments on this point. [ 47 ] The complaint that led to the First Hearing was made pursuant to section 460(5) of the MGA , which provides that a taxpayer can complain about an assessment to an assessment review board.

Following the First Hearing, the LARB issued the First Decision. During the Second Hearing, Resman argued that

section 477 of the MGA prevents a municipality from subsequently (in the same year) issuing an amended assessment notice on the same section 460(5) subject matter. The City argued that it had authority to issue the Amended Assessments pursuant to

section 305 . [ 48 ] The LARB was therefore squarely engaged in interpreting its home statute, the MGA . The LARB found that based upon its

interpretation of the MGA , it lacked the authority to “rehear” the complaint and was without jurisdiction to entertain the complaint before it. [ 49 ] I agree with The City that the question of whether the LARB misapplied or misinterpreted sections 305 and 477 of the MGA , finding that these sections did not afford it jurisdiction to entertain the Second Hearing on its merits, is a question of law or jurisdiction.

While the LARB’s finding that the Second Hearing was a “rehearing” is a factual determination, this does not detract from the fact that the LARB was engaged in the application of a legal test or principle to its factual finding that this was a rehearing. Ultimately, the LARB was tasked with determining whether sections 305 and 477 of the MGA gave it the ability to proceed with the Second Hearing on its merits. [ 50 ] Although the LARB’s alleged misinterpretation would have inevitably resulted in a misapplication of the MGA to the facts, these questions do appear to be questions of statutory

interpretation and of the correct applicable legal principles and, according to Southam at para 35 , are questions of law. Further, the nature of the question is related to whether the LARB had the authority to hear the merits of a complaint about an amended assessment that corrected an error in an assessment on the same subject matter that had been the subject of a prior complaint heard and decided by the LARB. [ 51 ] The LARB found that

section 477 of the MGA precludes an assessor from issuing an amending assessment notice following a complaint hearing. It determined that the wording of

section 477 created a “mandatory obligation” on The City to reflect the assessment values determined in the First Hearing on the assessment roll. As a result of interpreting

section 477 as creating a mandatory duty, the LARB found it was without jurisdiction in the Second Hearing. [ 52 ] The LARB did not provide express reasons respecting its

interpretation of

section 305 of the MGA , other than stating that The City was relying upon this

section as authority to issue the Amended Assessments following the First Decision. In any event, the LARB ultimately determined that The City had no authority to issue the Amended Assessments under this section. In so doing, the LARB attempted to ascertain the intent of the Legislature in order to determine its own authority pursuant to the MGA . [ 53 ] In the result, the first ground for appeal raises questions of law and of jurisdiction. b.

Is the question of sufficient importance to merit an appeal? [ 54 ] The City submits that the Decision has, in effect, rewritten the MGA by limiting or removing a municipality’s ability to correct errors and make changes to its assessment notices. The City submits that the proper

interpretation of sections 305 and 477 of the MGA and related assessment sections will be important for future cases in which a municipality seeks to correct errors and issue amended assessment notices. A decision on this issue will clarify the corresponding jurisdiction of the LARB to hear future taxpayer complaints on amended assessment notices. The City submits that the Decision affects every municipality in Alberta, and is therefore of

objective importance. It also submits that in argument during the Second Hearing, the LARB itself recognized the objective importance of the questions, pointing to the Presiding Officer’s statement that he would welcome a decision by the Court on the question of jurisdiction. [ 55 ] Resman argues that the question for appeal is not of sufficient importance to satisfy the requirements in s 470(5) of the MGA on two grounds. [ 56 ] First, Resman contends that the relevance of the Decision is limited to the specific facts of this case and thus involves the correction of fact-specific questions.

It submits that the question is of subjective importance only. That is, it pertains to valuation of two vacant city lots owned by a single taxpayer. [ 57 ] Second, Resman submits that the question on appeal has been previously determined and thus there is nothing novel or unsettled about it. In support of this argument, Resman relies on Alberta Teachers’ Association v Northern Lights School Division No 69 , 2013 ABQB 220 , 559 AR 371 at para 53 [ Northern Lights ] in which the Court addressed whether an administrative panel could reopen proceedings to receive new evidence or whether it was functus officio .

Resman submits Northern Lights affirmed that the circumstances under which a tribunal may hold a rehearing have been well established, and none of those circumstances were demonstrated in the Second Hearing to justify a rehearing. [ 58 ] More importantly, Resman argues that the question of when a municipality might amend an assessment notice under

section 305 of the MGA has been previously addressed by Rooke ACJ in Capilano . In Capilano , the taxpayer (a shopping centre) appealed its original assessment on the basis it was too high given comparable properties. After the taxpayer filed its appeal and related submissions, the City indicated that the assessor had changed its opinion and was now assessing the mall as a "power shopping centre", and was thus seeking to increase the original assessment amount by approximately $10 million.

The review board accepted the City’s reassessment and the taxpayer appealed its decision to this Court. [ 59 ] Rooke ACJ found that in accepting the changed assessment, the review board acted without jurisdiction and made errors of law. He concluded that the MGA does not allow a municipality to complain about its own assessment and change it upwards, thereby acting as a de facto appellant. In interpreting

section 305 of the MGA , Rooke stated as follows, at para 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 ... [ 60 ] Rather, he stated that

section 305 of the MGA was akin to a “slip rule”, and that he did not interpret the provision as permitting a more substantive change. In rejecting the City’s submissions on this point, he stated, at para 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 of s. 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 change the 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. [ 61 ] In relying on Capilano , Resman submits that the basis of the Amended Assessments was The City assessor’s change of opinion of how the properties should be classified, which is distinct from a mere correction. [ 62 ] In the result, Resman submits that given the existing jurisprudence on this issue, the test for leave is not satisfied as there is limited jurisprudential value to be gained in hearing the question.

In addition, the availability of a remedy to The City in the next assessment year renders the matter of insufficient importance to merit an appeal. [ 63 ] At the crux of this intended appeal is the question of what types of errors can be corrected by The City under

section 305 of the MGA . I say this question is the “crux” because if The City is precluded under

section 305 from amending the assessment notices in the manner in which it has, this ends the inquiry. That is, if

section 305 does not allow this type of amendment (changing the assessment from the “over-an-acre rate” applied to raw developable land to the rate for serviced land) it follows that no Amended Assessments could then be issued. [ 64 ] However, if this error is of the type that can be corrected under

section 305 , then the next question to consider is whether

section 477 prevents a municipality from using

section 305 to correct an error on the same subject matter after a review board decision on that matter. If the answer to that question is yes, then that again ends the inquiry. However, if the answer is no, then the Court would ultimately consider whether the review board had the ability to rehear a complaint on the Amended Assessments. [ 65 ] I acknowledge that in Capilano , Rooke ACJ specifically noted that while the

interpretation of

section 305 was not “directly raised” in that case, he did consider the meaning of this section. After referring to the decision of the Municipal Government Board in Edmonton (City) v Army & Navy Department Store Ltd , [2002] AMGBO No 126 (Alta. Mun. Gov. Bd.) and considering the interplay of various sections of the MGA , he ultimately concluded that

section 305 permitted the correction of a non-substantive error, omission or misdescription, as opposed to a substantive correction. [ 66 ] Similar to the issue before the Court in Capilano , the increased assessments in the Amended Assessments were the result of a change in opinion as to how the Subject Properties were to be classified. The error was an initial failure to take into account the effects of servicing on the value of the Subject Properties and the applicable rate that was then to be applied. Given the Capilano decision, the proposed appeal would appear to have little jurisprudential value on this issue. [ 67 ] However, there remains the issue concerning the

interpretation of

section 477 of the MGA and whether the hearing before the LARB was a rehearing, or a new hearing on an amended assessment notice. It does not appear from the authorities provided by the parties that this issue has received prior judicial consideration. In my view, the principles referred to by Resman from the Northern

Lights decision are not directly engaged in this case which is focused on a more specific issue than when an administrative decision may be reconsidered. [ 68 ] I appreciate there is merit to Resman’s argument that this appeal involves discrete facts, small assessment amounts, and that The City has an available remedy by changing the assessment for the following year. That said, the

interpretation of

section 477 of the MGA and whether, as a result of The City’s use of

section 305 of the MGA to correct an error in the Original Assessments, this was a “rehearing” of a complaint previously heard and decided or a “new hearing” could be of jurisprudential importance and thus have wide implications for future municipal assessments. [ 69 ] Therefore, there is sufficient importance to grant leave to appeal on this issue. c.

Does the appeal have a reasonable chance of success? [ 70 ] An analysis of the chance of success will be based on the determination of the applicable standard of review for the grounds of appeal raised: is it reasonableness or correctness? [ 71 ] The City urges a finding that the Decision is reviewable on the correctness standard. The City submits that this is the applicable review standard given that the LARB was engaged in determining its own jurisdiction. The City asserts that although the

interpretation and application of the LARB’s home legislation would typically attract the more deferential standard of reasonableness, in this case, no deference ought to be given. The City says so because the LARB was not applying its expertise relating to valuation of property in interpreting the legislation. The City thus submits that the applicable review standard must be one of correctness. [ 72 ] In any event, the City argues that under either review standard it would have a reasonable chance of success on appeal.

This is because the LARB did not follow the provisions in the MGA dealing with assessments and hearings of complaints on assessments. [ 73 ] Conversely, Resman argues that the appropriate review standard is one of reasonableness. Resman contends the Court in Capilano has interpreted

section 305 and hence subsequent judicial reviews involving

section 305 will properly be conducted using a reasonableness standard. In any event, Resman contends that whether the questions on appeal are considered according to a either a reasonableness or correctness standard, there is no reasonable chance of success. [ 74 ] I agree with counsel for Resman on this latter point.

Regardless of which review standard is employed, The City ultimately has no reasonable chance of success on appeal. [ 75 ] I accept that The City may have a reasonable chance of success on an appeal of the question of whether the second complaint on the Amended Assessments amounted to a “rehearing”, and if that was the case, whether the LARB has the jurisdiction to rehear the matter. [ 76 ] Success on this question will depend, in part, on whether the subject matter of the Amended Assessments is the same subject matter dealt with on the First Hearing.

Resman suggests that the subject matter in both instances was the same (assessed property value) and that once the LARB hears and decides a taxpayer’s complaint on one of the 10 identified subject matters upon which a complaint can be heard under section 460(5) , it becomes functus , and can no longer decide a complaint on that same subject matter during that same assessment year. The City’s persuasively suggests otherwise. [ 77 ] Again, the LARB determined that the prior LARB board followed the requirements of section 467(1) of the MGA in determining that no change was warranted to the initial assessed values.

The LARB then went on to conclude there was a mandatory obligation for the municipality to reflect this decision on the assessment roll in accordance with

section 477. The City has demonstrated that that the proposed appeal is prima facie meritorious on this question. [ 78 ] Resman devoted much of its argument to a discussion of whether allowing a “rehearing” on the same subject matter would be prejudicial, procedurally unfair, or otherwise amount to an abuse of process. I am not to consider the merits of the appeal on a leave application: Altus , para 11 .

In any event, this is a question for another day, because in order for the LARB to even reach the point where it might address this question, the Amended Assessments must be validly before it. [ 79 ] On that question, I find that, ultimately, The City has no reasonable chance of success as it lacked the statutory authority to issue the Amended Assessments. [ 80 ] Again, The City focused much of its argument on the interplay between various sections of the MGA .

I do not think there is any debate as to whether the MGA and related regulations allows for an amended assessment, or whether a complaint may be brought following an amended assessment. Nor is there any debate as to whether a LARB may hear (as opposed to rehear) a complaint on an amended assessment. [ 81 ] The question is not whether a municipality has the ability to amend an assessment notice, nor whether a complaint may be brought on that notice.

Rather, the question is whether The City was permitted to issue the Amended Assessments on the basis that it had erred in its Original Assessments because its assessor had mistakenly thought the land was raw developable when in fact it was serviced land, which required him to apply a different assessment rate. [ 82 ]

Section 305 provides the assessor with authority to correct an error, omission or misdescription on the current year’s assessment roll. [ 83 ] The City argues that

section 305 of the MGA allows the assessor to “correct or change” the assessment roll in the current year. This is not entirely accurate. Section 305(1)(

a) provides that if an error, omission or misdescription in any of the information shown on the assessment roll is discovered, the assessor may “correct” the assessment. The term “change”, which in this context suggests something more than a mere “correction”, does not appear until section 305(5). This subsection is comparatively of limited application as

it deals with instances where a complaint has already been made by a taxpayer, and prohibits an assessor from changing or correcting the roll until a decision has been rendered by the review board. Section 305(1) governs when a reassessment may be issued, while section 305(5) deals with the more limited circumstance of reassessing after a complaint has been made. [ 84 ] Moreover, there is now the Capilano

interpretation of section 305(1). I note that when this matter was argued before the LARB, neither counsel nor the LARB had the benefit of Rooke ACJ’s reasons in Capilano , which was issued approximately one year after the Second Decision. However, in my view, Capilano makes it clear that section 305(1) operates as something akin to the “slip rule”, and that it does not give an assessor the ability to correct an assessment notice based upon a change in opinion.

Indeed, the “slip rule” provides a tribunal with the ability to correct clerical mistakes and technical errors: see Fas Gas Oil Ltd v JH Automotive Ltd , 2004 ABCA 120 , 348 AR 65 [ 85 ] As such, the remedy lies in accounting for such a change in the following year’s assessment. As clearly stated by the Court in Capilano , section 305(1) only provides for a correction as opposed to a reassessment . [ 86 ] While Rooke ACJ’s comments regarding the operation and intent of

section 305 were in obiter , that does not necessarily detract from the weight this Court may place upon them: R v Henry , 2005 SCC 76 , [2005] 3 SCR 609 at para 57 . Rooke ACJ’s statements were made in the context of a thorough review of the MGA , and were clearly intended for guidance, which suggests the statements would be viewed as authoritative. Indeed, a review of the related provisions of the MGA supports his view. This

section provides for corrections to be made to an error, omission or misdescription of any information shown on the assessment roll. The nature of the information reflected on a residential assessment roll is such that clerical mistakes and technical errors may occur from time to time, and will require correction. [ 87 ] The City points out that section 305(5) states that an assessor must not correct or change an assessment roll if a complaint has been made under

section 460 of the MGA in respect of that property, until a decision of the LARB has been rendered or the complaint withdrawn. The City submits that if, as directed by the LARB, it had sought to rectify the error in the assessment amount in the Original Assessments at the First Hearing – that is, to change or correct the Original Assessments – it would have been in violation of section 305(5) of the MGA . I agree that the directions provided in the Second Decision run afoul of the Court’s direction in Capilano .

However, this does not settle the issue of whether the type of reassessment in issue here was one permitted to be made under section 305(1). [ 88 ] The City argues that to apply the restrictive

interpretation of section 305(1) as the LARB apparently did, would result in a gap in the annual assessment system by preventing the assessor from making corrections to errors found in the assessment rolls and would permit assessment rolls that contain errors. Again, this concern is answered in Capilano . If a non-clerical or technical error is discovered, The City has the ability to reassess in the following taxation year. If the taxpayer believes that such an error is reflected on the roll, a complaint may be made pursuant to section 460(5) . [ 89 ] While The City may have a reasonable chance of success on the issue of whether the LARB erred in its

interpretation of

section 477 of the MGA and its subsequent finding that it was without jurisdiction to entertain a “rehearing”, in light of the nature of the reassessments in issue here and this Court’s findings in Capilano , The City will not ultimately be successful on appeal. [ 90 ] Allowing leave to appeal on part of a question, in instances where an applicant will ultimately be unsuccessful on the question in its entirety is not an economical or practical use of scarce judicial resources.

This is especially so as The City has a remedy in the following taxation year. [ 91 ] As argued by Resman, the LARB ultimately reached the correct result in re-instating the Subject Properties assessments as provided for in the First Decision. While the Capilano decision was not before the LARB when it decided the Second Decision, there is its

interpretation of

section 305 and there is the decision of the LARB not to hold a rehearing on the Amended Assessments. [ 92 ] In the result, the Second Decision was arguably correct or, at the very least, justifiable and within a range of acceptable outcomes because if no correction could be made to the Original Assessments, then there would be no new complaint and no rehearing. It is clear that given the

interpretation of

section 305 in Capilano , the LARB could not have “otherwise dealt with the Amended Assessments” and The City would ultimately have no success in arguing this question on appeal. [ 93 ] The City has therefore failed to satisfy the third requirement under section 470(5) of the MGA . Its application for leave to appeal this question is not granted.

Ground Two: Did the LARB err by making findings of fact for which there was no supporting evidence, disregarding relevant evidence or making irrational inferences of fact? [ 94 ] The City argues that the LARB made unsupportable and irrational findings of fact, and that this is a jurisdictional error. The City asserts that the LARB’s finding that the Second Hearing was a “rehearing” was based on no evidence or irrational inferences of fact and contrary to the evidence of the assessor before it.

The City points to the assessor’s explanation to the LARB that the Second Hearing would not be a rehearing of Resman’s complaints on the Original Assessments that addressed the issues of cost to cure and topography, but rather the LARB would be considering Resman’s new complaint on two new assessments that would address the new issue of equity. [ 95 ] The LARB’s treatment of the evidence (or lack thereof) and what weight (if any) it chose to give to certain evidence do not constitute questions of law or jurisdiction.

The LARB’s exercise of discretion in this area is a question of mixed law and fact: GSL Chevrolet Cadillac Ltd v Calgary (City) , 2013 ABQB 318 . In any event, even if that is not the case, these issues are specific to this case and thus cannot satisfy the requirement of sufficient importance for granting leave to appeal.

[ 96 ] Again, given that The City will ultimately be unsuccessful on appeal, a hearing of this issue carries no reasonable chance of success. The City’s leave to appeal this question is not granted. VI. CONCLUSION [ 97 ] In the result, The City has not satisfied the three-part test required for leave to appeal under section 470(5) of the MGA on either question. The City’s application is dismissed. [ 98 ] The parties may speak to costs within 60 days of this decision, if necessary. Heard on the 23 day of January, 2014. Dated at the City of Calgary, Alberta this 5 th day of November, 2014. G. A. Campbell J.C.Q.B.A.

Appearances: Leila J Gosselin and Nathan W Irving for the Applicant, The City of Calgary Gilbert J Ludwig and Brian K Dell for the Respondent, Resman Holdings Ltd Patrick Knoll, QC for the Respondent, the LARB