Canada Safeway Ltd v Calgary (City), 2016 ABQB 200

Court of Queen ’ s Bench of Alberta Citation: Canada Safeway Ltd v Calgary (City), 2016 ABQB 200 Date: 20160406 Docket: 1101 16756 Registry: Calgary Between: Canada Safeway Ltd. (as represented by its Designated Agent, Altus Group Limited) Applicant - and - The City of Calgary and the Assessment Review Board for the City of Calgary and the Minister of Justice and Attorney General for Alberta Respondents Corrected judgment: A corrigendum was issued on June 2, 2016; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr.

Justice K.D. Yamauchi _______________________________________________________

I. Introduction [ 1 ] Canada Safeway Ltd (the "Complainant"), through its agent, Altus Group Limited ("Altus"), seeks leave to appeal Decision CARB 2536/2011-P (the "Decision") of the Calgary Composite Assessment Review Board (the "Board"). The Decision upheld the 2011 municipal property tax assessment (the "Assessment") that the City of Calgary (the "City") made in respect of a Safeway grocery store located at 524 Elbow Drive SW in Calgary (roll no. 080200603) (the "Mission Safeway"). II. Background [ 2 ] The parties do not disagree on the salient facts. The Complainant retained Altus to file a complaint from the Assessment pursuant to

section 460 of the Municipal Government Act, RSA 2000, c M-26 [ MGA ]. Altus filed the complaint and the Board mailed a "Notice of Hearing" on April 12, 2011, to Altus and the Complainant (the “Notice”). The Notice stated that the hearing was set for October 18, 2011 (the “Hearing”). [ 3 ] The Notice contained the following direction with respect to disclosure: This complaint(

s) is subject to the Matters Relating to Assessment Complaints Regulation AR 310/2009 . You are required to file all of the evidence/documentation that will be presented at the hearing, with the Assessment Review Board and The City of Calgary on or before the date indicated below. If received after the deadline, such evidence will not be heard by the Board. Please see the enclosed brochure for further instructions.

Complainant Disclosure Due Date: 06-September-2011 Complainant Rebuttal Due Date: 11-October-2011 [Emphasis in original]. [ 4 ] Altus submitted the Complainant's rebuttal evidence to the Board and the City. Altus had to break the rebuttal evidence into multiple emails to accommodate the 15 megabyte email inbox capacities of the recipients, as follows: Subject Attachment(

s) Sent Received 2011 ARB Rebuttal Submission for = 080200603 080200603 – 2011 ARB Evidence Submission = Economic Demand Rebuttal.pdf 8:18 p.m. October 11 8:20 p.m. October 11 RE: 2011 ARB Rebuttal Submission for = 080200603 2011 ARB Evidence Submission = 'Land Only Valuation Rebuttal =

Part III.pdf 11:53 p.m. October 11 11:56 p.m. October 11 RE: 2011 ARB Rebuttal Submission for = 080200603 2011 ARB Evidence Submission = 'Land Only' Valuation Rebuttal =

Part 1.pdf Highest & Best Use Arguments = Theory & Legislation.pdf 11:56 p.m. October 11 11:58 p.m. October 11 RE: 2011 ARB Rebuttal Submission for = 080200603 067243808 – 2011 ARB Evidence Submission = Land Sales Rebuttal (Part II of II).pdf 11:57 p.m. October 11 11:59 p.m. October 11 RE: 2011 ARB Rebuttal Submission for = 080200603 067243808 – 2011 ARB Evidence Submission = Land Sales Rebuttal (Part I of II).pdf 11:59 p.m. October 11 12:01 a.m. October 12 RE: 2011 ARB Rebuttal Submission for = 080200603 2011 ARB Evidence Submission = Rebuttal (Site Specific).pdf 12:00 a.m. October 12 12:01 a.m.

October 12 RE: 2011 ARB Rebuttal Submission for = 080200603 City of Calgary Retail Valuation Methodologies, Procedures and

Definitions 12:05 a.m. October 12 12:06 a.m. October 12 RE: 2011 ARB Rebuttal Submission for = 080200603 Various CARB Decisions 8:21 a.m. October 12 8:22 a.m. October 12 [ 5 ] The document sent at 12:05 a.m. on October 12, 2011, was the City's own document, and the documents sent at 8:21 a.m. October 12, 2011, were administrative tribunal decisions and some photographs.

Rule 38(9) of the Calgary Assessment Review Board Policies and Procedural Rules [ CARB Rules ] provides that the Board may consider tribunal or court decisions in complaint hearings, even where such materials are not provided in disclosure materials. [ 6 ] At the start of the Hearing, the City objected to the admissibility of the documents that Altus sent at 11:59 p.m., 12:00 a.m., 12:05 a.m., and 8:21 a.m. (collectively, the “Impugned Evidence”), arguing that it received them late and therefore they were inadmissible under section 9(2) of the Matters Relating to Assessment Complaints Regulation , Alta Reg 310/2009 [ MRAC ].

The City also argued that the Impugned Evidence should be excluded because Altus's disclosure in relation to previous, unrelated assessment complaint hearings for other taxpayers had been late. The City sought the exclusion of the Impugned Evidence or, if the Board chose to admit the Impugned Evidence, $1,000 in costs pursuant to MRAC

Schedule 3, which Altus offered to pay.

[ 7 ] The City did not give Altus any advance notice that it intended to argue the late filing of the Impugned Evidence issue at the outset of the Hearing. During its submissions on the admissibility issue, the City provided the Board with an email string as evidence, which the City had not disclosed to Altus in advance of the Hearing, although the emails emanated from Altus.

The City argued Altus ought to have known that the issue of admissibility would be raised because Altus had disclosed materials late in the past, and the Board had previously censured Altus for its past late filings. [ 8 ] When Altus asked for a recess to retrieve its argument and the time-stamped materials to confirm when they were sent, the Board granted a 10-minute recess.

When Altus indicated 10 minutes would not be enough time to gather these materials the presiding officer stated: "You might be able to call somebody": Transcript of Hearing, October 18-19, 2011, pp 18-19. [ 9 ] Immediately after reconvening the Hearing, the Board rendered its decision. The Board held that the Impugned Evidence was inadmissible.

The filing deadlines were intended to allow the City and the Board to "have the appropriate time before the hearing to respond or to develop an argument": Transcript of Hearing, October 18-19, 2011, p 20, ll 5-14. [ 10 ] Despite the City's willingness to accept an award of costs if the Board was inclined to admit the Impugned Evidence, the Board declined Altus's offer, stating that the costs penalty would not cover the actual costs to the Board: Transcript of Hearing, October 18-19, 2011, p 23, ll 1-9. [ 11 ] Later, the Presiding Officer stated the following: Thank you.

We will stick with our decision, partly because if, as these documents show, there is a pattern, I think it would behoove you to learn to submit your papers the day before or the noon before or at least by the end of the work day if you know that you have this issue. Transcript of Hearing, October 18-19, 2011, p 22, ll 4-9. [ 12 ] On the second day of the Hearing, Altus made further submissions about whether the Board ought to have excluded the evidence that Altus had submitted at 11:59 p.m. on October 11, 2011, given that it was sent before the 7-day deadline.

The Board ruled as follows: The reason the City asks for this in this special case was because it's a constant – it's a repeating behavior. It is difficult to allow you to get away with the same thing over and over because you don't seem to have taken the message to heart. Perhaps this will help you take the message to heart. Transcript of Hearing, October 18-19, 2011, p 295, ll 1-6. [ 13 ] The Complainant argues that the Board had not given it the opportunity to present its case.

The Presiding Officer said the following in that regard: And I suspect that because you have made a very comprehensive and extremely good presentation already that there really isn’t a whole lot more that would make a whole lot of difference to your decision we make one way or the other. Transcript of Hearing, October 18-19, 2011, p 295, ll 6-10. [ 14 ] The Decision provided the following reasons for excluding the Impugned Evidence, as well as the documents Altus sent at 8:21 a.m. on October 12, 2011: The Board studied MRAC and the letter from Calgary ARB Counsel citing the Chairman's decision (April 13, 2011).

The legislation indicates an absolute deadline, and the letter indicates that while in the past previous CARBs have allowed late disclosure, this only happens for reasons of fairness if there are extenuating circumstances to justify it. In this case a large part of the lengthy rebuttal evidence had been submitted in time, so the Complainant had the opportunity for a fair rebuttal. Further, the Complainant could not demonstrate any extenuating circumstances to justify late disclosure. For these reasons, the Board did not allow the late disclosure. Decision at 2. III.

Issues [ 15 ] The Complainant argues that the Board made the following 3 errors of law: (

a) it failed to apply any legal test whatsoever in excluding a portion of the Complainant's relevant rebuttal evidence because it was emailed a few minutes inside the seven day period provided for in the ... [ MRAC ]; (

b) it breached its duty of procedural fairness and the rules of natural justice by failing to allow the Complainant a right of reply to the City's argument about the admissibility of the Complainant's disclosure, which was raised by the City for the first time in the Hearing, and by basing its decision to exclude relevant evidence on its desire to punish the Complainant's agent; and (

c) it entirely failed to apply the statutory and common law principle requiring assessors to ensure the assessment of an assessed property is equitable relative to other like improvements, by failing to consider whether the Mission Safeway had been assessed equitably with other grocery stores in the Beltline. Complainant’s Brief, filed July 23, 2015, para 2.

IV. Discussion A. General Principles and Legislation [ 16 ] This Court is dealing with the Complainant’s application for leave to appeal. It is not dealing with the substantive arguments that the Complainant could raise as part of the appeal if this Court were to grant leave. That would be left for a later date: GSL Chevrolet Cadillac Ltd v Calgary (City) , 2013 ABQB 318 at para 13 .

This Court will discuss the substantive arguments only insofar as they relate to the leave application. [ 17 ] The provisions of the MGA that bear on the case at bar are as follows: 464(1) Assessment review boards are not bound by the rules of evidence or any other law applicable to court proceedings and have power to determine the admissibility, relevance and weight of any evidence. 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). 470

(1) An appeal lies to the Court of Queen’s Bench on a question of law or jurisdiction with respect to a decision of an assessment review board. ...

(5) On hearing the application and the representations of those persons who are, in the opinion of the judge, affected by the application, the judge may grant permission to appeal if the judge 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.

(6) If a judge grants permission to appeal, the judge may (

a) direct which persons or other bodies must be named as respondents to the appeal, (

b) specify the question of law or the question of jurisdiction to be appealed, and (

c) make any order as to the costs of the application that the judge considers appropriate. ... [ 18 ] In Edmonton (City) v Edmonton (City) Composite Assessment Review Board , 2012 ABQB 171 at para 11 , 535 AR 215, 73 Alta LR (5th) 143, Topolniski J provided a

summary of the jurisprudence that bears on the issues before this Court, when she said the following: These points are fundamental to applications for leave to appeal from the Board: a. The onus rests with the applicant to establish the Three-Part Test. b. Any reasonably arguable point of law or jurisdiction must also be capable of affecting the result. c. A breach of procedural fairness or the rules of natural justice is reviewable as a question of law. d. The principles governing the distinctions between a question of law and one of mixed fact and law are ...: i.

An incorrect statement of the legal standard, or test, or an application of incorrect factors in applying the law to the facts is an error of law. ii. Where there is a discretion involved in applying the law to the facts, the application of the discretion is not a question of law, but a question of mixed law and fact. iii. However, if a wrong legal principle is used in the application of the law to the facts, or in the exercise of the discretion, there is an error of law. e.

As a specialized tribunal, the Board's decisions are given deference for factual findings, exercise of discretion, questions of policy, and for questions of law that call upon its expertise, including the

interpretation of its home statute. f. The Court may not grant leave to re-try questions of fact nor is it to re-weigh the evidence or the Board's considerations and substitute its findings on the relevant evidence and considerations g. The Court of Appeal in a similar type of leave to appeal application of a Subdivision and Appeal Board decision has said that an appeal court will only interfere in discretionary decisions of a tribunal in limited circumstances: ... the tribunal "proceeded arbitrarily, or the decision is so clearly wrong as to amount to a failure of justice"; or where the judge

proceeded "arbitrarily, on a wrong principle, or on an erroneous view of facts", or gave "no weight or insufficient weight to relevantconsiderations" h. An issue may be of sufficient importance to merit an appeal if it is important for jurisprudential purposes. The importance isdetermined on an objective scale. Generally, there should be something unsettled about the question, or the decision should have wideranging implications. i. Inadequacy of reasons for a decision does not constitute a stand alone ground of appeal.

Rather, it goes to the reasonableness of thedecision. [19] Topolniski J provides the citations of the cases from which she derived the foregoing “fundamentals.” This Court has chosento omit those citations from her quotation. [20] The 3-part test to which Topolniski J refers is contained in MGA s 470(5).

In Wood Buffalo (Regional Municipality) vCanadian Natural Resources Ltd, 2015 ABQB 89 at paras 6-7, Jeffrey J said the following: Under s 470(5) of the MGA, leave to appeal may be permitted only for: (1) a question of law or jurisdiction; (2) that is of sufficientimportance; and (3) that has a reasonable chance of success. If Wood Buffalo satisfies all three parts of the test, s 470(5) says that I "may" grant leave; it is not mandatory that I do so.

If WoodBuffalo fails to satisfy any one branch of the test, I have no discretion to do so; leave must be denied. [21] It is important that this Court characterize properly the questions before it. Are they questions of fact, mixed law and fact, orlaw? Questions of fact are not appealable. Neither are most questions of mixed law and fact. MGA s 470(1) makes it clear, however, thatquestions of law may form the subject-matter of an appeal. None of the parties argues that the Board exceeded its jurisdiction. [22] Why is the characterization of the questions important?

In Alberta (Workers’ Compensation Board) v Alberta (Workers’Compensation Board Appeals Commission), 2005 ABCA 276, 371 AR 318, 51 Alta. L.R. (4th) 237 [WCB] at para 19, Fruman JA saidthe following: The reviewing court must also keep in mind that it is in an applicant's best interest to characterize a question as one of law or jurisdiction,as those questions generally attract a less deferential standard of review. A nimble drafter may succeed in dressing errors of fact in error-of-law clothing. Simply asserting a question of law or jurisdiction is insufficient.

The reviewing court must identify the true target of theapplicant's attack, determine if it raises a question of law or jurisdiction and gauge whether the issue is arguable. When a statutory rightof appeal is conditioned on leave being granted ..., this inquiry is performed by the judge hearing the leave application. [23] Thus, whether the Complainant characterizes its question as one of law or mixed law and fact is not binding on this Court.This Court must undertake its own analysis and characterize the question appropriately.

Fruman JA went on to describe how this Courtshould go about its responsibility when she said the following: There is a well-recognized distinction between questions of law and questions of mixed fact and law. In Canada (Director ofInvestigation & Research) v. Southam Inc., (SCC), [1997] 1 S.C.R. 748 (S.C.C.) at paras. 35-37, the Supreme Courtnoted that questions of law are about the correct legal test, whereas questions of mixed fact and law are about whether the facts satisfythe legal test.

A general proposition with precedential value might qualify as a principle of law, but not its application to particular factsor circumstances. The Supreme Court confirmed this distinction in Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33 (S.C.C.) at paras. 27-31. Inthat case the Court noted that questions of mixed fact and law involve the application of a legal standard to a set of facts; conversely,errors of law involve an incorrect statement of the legal standard, or a flawed application of the legal test.

An example of the latter occurswhen a decision-maker only considers factors A, B, and C, but the test also requires factor D to be considered. The Court alsoacknowledged an exception to the distinction between questions of law and questions of mixed fact and law, when it is possible toextricate a pure legal question from what appears to be a question of mixed fact and law: at para. 34. WCB at paras 21-22. [24] She went on to say the following: The concept of an extricable legal error can be difficult to understand.

In Housen at para. 36, the Supreme Court provided clarification.In that case the alleged error was a finding of negligence, a question of mixed fact and law. The Court noted that when the error in afinding of negligence can be attributed to the application of an incorrect standard, a failure to consider a required element of a legal test ora similar error in principle, such an error can be characterized as an extricable error of law. However, when the issue on appeal involves atrial judge's

interpretation of the evidence as a whole, or the application of the correct legal test to the evidence, there is no extricableerror of law. WCB at para 29. B. Standard of Review [25] Does this Court, when it is reviewing the Board’s decisions, apply a standard of reasonableness or a standard of correctness?New Brunswick (Board of Management) v Dunsmuir, 2008 SCC 9, [2008] 1 SCR 190 [Dunsmuir] will help us understand the way inwhich the Supreme Court of Canada explained when a reviewing court will apply a correctness standard. The contexts are fairly narrowand include the following:

(

a) Determinations of true questions of jurisdictional or vires; (

b) Questions regarding the jurisdictional lines between 2 or more competing specialized tribunals; (

c) A question of law that is of central importance to the legal system and outside the specialized area of expertise of the administrativedecision maker; and (

d) Constitutional questions regarding the division of powers between Parliament and the provinces. [26] Dunsmuir also provides us with situations within which reviewing courts will apply a reasonableness standard, which includethe following: (

a) Questions of fact, discretion and policy; (

b) Questions where the legal issues cannot be easily separated from the factual issues; (

c) A privative clause, provided it does not trench on a jurisdictional issue; (

d) Where the administrative tribunal is interpreting its own statute or statutes closely connected to its function, with which it will haveparticular familiarity; and (

e) Where an administrative tribunal has developed particular expertise in the application of a general common law rule in relation to aspecific statutory context. Dunsmuir at paras 51, 53, 54 and 64. [27] In ATA v Alberta (Information & Privacy Commissioner), 2011 SCC 61, 519 AR 1, 52 Alta LR (5th) 1, Rothstein J, for themajority, said the following: ... 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 question 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. [28] The Supreme Court of Canada described “reasonableness” as follows: Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards ofreasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result.Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range ofacceptable and rational solutions.

A court conducting a review for reasonableness inquires into the qualities that make a decisionreasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concernedmostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concernedwith 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. [29] Where the question is one of fact, discretion or policy, deference will usually apply automatically: Dunsmuir at para 51;Canada (Attorney General) v Mossop, (SCC), [1993] 1 SCR 554 at 599-600; Dr Q v College of Physicians andSurgeons of British Columbia, 2003 SCC 19, [2003] 1 SCR 226 at para 29; Suresh v Canada (Minister of Citizenship andImmigration), 2002 SCC 1, [2002] 1 SCR 3 at paras 29-30.

Thus, questions of fact, discretion and policy, as well as questions where thelegal issues cannot be easily separated from the factual issues, generally attract a standard of reasonableness, while many legal issuesattract a standard of correctness: Dunsmuir at para 51. [30] In Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at paras12-16, [2011] 3 SCR 708, Abella J for the court said the following: ... [T]he notion of deference to administrative tribunal decision-making requires "a respectful attention to the reasons offered or whichcould be offered in support of a decision". ...

This, I think, is the context for understanding what the Court meant in Dunsmuir when it called for "justification, transparency andintelligibility". To me, it represents a respectful appreciation that a wide range of specialized decision-makers routinely render decisionsin their respective spheres of expertise, using concepts and language often unique to their areas and rendering decisions that are oftencounterintuitive to a generalist. That was the basis for this Court's new direction in C.U.P.E., Local 963 v.

New Brunswick Liquor Corp., (SCC), [1979] 2 S.C.R. 227 (S.C.C.), where Dickson J. urged restraint in assessing the decisions of specializedadministrative tribunals. This decision oriented the Court towards granting greater deference to tribunals, shown in Dunsmuir'sconclusion that tribunals should "have a margin of appreciation within the range of acceptable and rational solutions" (para. 47).

Read as a whole, I do not see Dunsmuir as standing for the proposition that the "adequacy" of reasons is a stand-alone basis for quashinga decision, or as advocating that a reviewing court undertake two discrete analyses — one for the reasons and a separate one for theresult ... It is a more organic exercise — the reasons must be read together with the outcome and serve the purpose of showing whetherthe result falls within a range of possible outcomes.

This, it seems to me, is what the Court was saying in Dunsmuir when it toldreviewing courts to look at "the qualities that make a decision reasonable, referring both to the process of articulating the reasons and tooutcomes" (para. 47). In assessing whether the decision is reasonable in light of the outcome and the reasons, courts must show "respect for the decision-

making process of adjudicative bodies with regard to both the facts and the law" (Dunsmuir, at para. 48). This means that courts shouldnot substitute their own reasons, but they may, if they find it necessary, look to the record for the purpose of assessing thereasonableness of the outcome. Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would havepreferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis.

A decision-maker isnot required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion ...

In otherwords, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether theconclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met. [31] Thus, this Court must examine the Board’s decisions holistically and not try to parse portions of it to see if the outcome isreasonable: Construction Labour Relations v Driver Iron Inc, 2012 SCC 65 at para 3, [2012] 3 SCR 405; Communications, Energyand Paperworkers Union of Canada, Local 30 v Irving Pulp and Paper Ltd, 2013 SCC 34 at para 54, [2013] SCR 458.

If the decisionfalls within the range of reasonable outcomes, this Court should not disturb it: ibid. [32] Recently, the Alberta Court of Appeal in Edmonton East (Capilano) Shopping Centres Ltd. v. Edmonton (City), 2015 ABCA85, [2015] 5 WWR 547, leave to appeal to SCC granted, [2015] SCCA No 161 [Capilano] concluded in broad terms that the correctnessstandard was the applicable standard when interpreting provisions of the MGA. The Alberta Court of Appeal acknowledged Capilano inAltus Group Ltd v Calgary (City), 2015 ABCA 86, 12 Alta LR (6th) 217, 599 AR 223 at para 11, but left the issue open with respect tothe

interpretation of a municipal bylaw as opposed to a provincial statute. [33] In Capilano, the Alberta Court of Appeal was considering the issue of whether an Assessment Review Board has the ability toincrease a property assessment when a complaint is brought by a taxpayer seeking a reduction of the assessment. More particularly, theissue was whether the MGA permitted the city to amend its assessment upwards during the complaint process. The Board in that casesaid it could, and the chambers judge held that it could not do such a thing.

That was the narrow issue before the Alberta Court ofAppeal. [34] After reviewing the 4 “signposts” in Dunsmuir for applying the standard of correctness, and the Supreme Court of Canadadecision in Pushpanathan v Canada (Minister of Citizenship & Immigration) (SCC), [1998] 1 SCR 982, 11 AdminLR (3d) 1, that described the concept of “general importance,” the Alberta Court of Appeal said that the 4 “signposts” should not beregarded as a closed list and, in any event, they should be read in a “flexible and open ended manner”: Capilano at para 23. [35] As for the issue before it, the court said that “the legislature intended the superior courts to have a significant and direct role ininterpretation of the taxing statutue”: Capilano at para 24 (emphasis added).

Why? The Alberta Court of Appeal said that “superiorcourts have a legitimate role to play in ensuring consistency of

interpretation and result” and as well, given that there are multiple boardswithin Alberta applying the same statute and the statute gives a right of appeal on issues of general importance, a standard of correctnessis necessary: Capilano at para 30. In the end, the Alberta Court of Appeal said the following: When all of these factors are weighed and considered, the appropriate standard of review of decisions of assessment review boards ininterpreting provisions of the Municipal Government Act is correctness. Capilano at para 31 (emphasis added). C.

Exclusion of the Impugned Evidence [36] The Complainant argues that when the Board decided not to consider the Impugned Evidence, it committed an error of law,such that the standard of this Court’s review of the Decision is one of correctness, rather than reasonableness. The error is that the Boarddid not articulate the legal test it applied when it refused to consider the Impugned Evidence, it applied an incorrect legal test or no legaltest at all, which rebuts any deferential standard.

Said differently, this Court cannot give deference to a decision that is wrong in law. [37] What is the test to which the Complainant refers? The starting point must be MRAC which guides the Board in its hearings,the relevant provisions of which are as follows: 8(2) If a complaint is to be heard by a composite assessment review board, the following rules apply with respect to the disclosure ofevidence: ... (

c) the complainant must, at least 7 days before the hearing date, disclose to the respondent and the composite assessment review boardthe documentary evidence, a

summary of the testimonial evidence, including a signed witness report for each witness, and any writtenargument that the complainant intends to present at the hearing in rebuttal to the disclosure made under clause (

b) in sufficient detail toallow the respondent to respond to or rebut the evidence at the hearing. 9(2) A composite assessment review board must not hear any evidence that has not been disclosed in accordance with

section 8. 10(2) Subject to the timelines specified in

section 468 of the Act, a composite assessment review board may at any time by written orderexpand the time specified in section 8(2)(a), (

b) or (c).

(3) A time specified in section 8(2)(a), (

b) or (

c) for disclosing evidence or other documents may be abridged with the written consent ofthe persons entitled to the evidence or other documents. [38] The Complainant argues that the correct

interpretation of MRAC s 9(2) requires the Board to apply a 2-part test whendetermining whether to exclude evidence where the applicant or respondent does not comply with the timelines set forth in MRAC s 8,

namely: (

a) Did the disclosing party comply with each requirement in s. 8 of MRAC ? (

b) If not, was disclosure still "in accordance with" s. 8 of MRAC , having regard to (

i) the nature or severity of the non-compliance, (ii) the reasons for the non-compliance, (iii) the prejudice to the respondent as a result of the non-compliance, and (iv) the impact on the complainant's case if the late evidence were excluded. Complainant’s Brief, filed July 23, 2015, para 32. [ 39 ] The Complainant concedes that this 2-part test has not been articulated by any court, or by the Board, for that matter. Its argument is grounded on the “modern approach” to statutory

interpretation, which says that MRAC s 9(2) must be interpreted consistently and purposively with MRAC s 8 and MGA s 464(1). [ 40 ] Although the parties did not argue the nature of the wording contained in MRAC s 10, it might be worthwhile to discuss the exact wording. MRAC s 10(3) talks about the time being “abridged.” That word is defined as, “to shorten in duration”: The Shorter Oxford English Dictionary , 3 rd ed, sub verbo “abridge”. What that means is that, for example, in MRAC s 8(2)(c), the time for disclosure of the information in that

section could be 3 days before the hearing date, if the City and the Board were to provide their written consent to Altus. [ 41 ] As for MRAC s 8(2), the Board may “expand” the time. That word is defined as, “to spread out ... to dilate, enlarge”: The Shorter Oxford English Dictionary , 3 rd ed, sub verbo “expand”. What that means is that, for example, in MRAC s 8(2)(c), the time for disclosure of the information in that

section could be 10 days before the hearing date, if the Board, exercising its discretion, felt that such expansion were warranted. [ 42 ] The wording is awkward. If the Alberta Legislature wanted to provide the Board with discretion to allow late disclosure, it might have used simpler, more direct wording.

It has not, and the Board and this Court is left with the wording that the legislature has chosen to use. [ 43 ] This Court does not disagree with the Complainant’s articulation of the purposes of MRAC and the MGA , which are "to provide access to the tribunal and procedures that accord with natural justice": City of Calgary v Gaspar Szenter Holdings (2007), Calgary 0701-04629 at 11 (QB).

These are basic procedural fairness rules that specify "disclosure obligations and the rules regarding the use of evidence in the event of non-disclosure ": Metrowest Developments Ltd v Calgary (Assessment Review Board) , 2014 ABQB 450 [ Metrowest ] at para 20 (emphasis added).

They are intended to ensure that the parties to the appeal have adequate notice of the case to be met and an opportunity to respond to or rebut evidence presented by the opposite party: Anterra Sunridge Power Centre Ltd v Calgary (City) , 2014 ABQB 223 , 2014 CarswellAlta 638 [ Anterra ] at para 47 . [ 44 ] In Metrowest , Eidsvik J observed that "The evidentiary rules binding the ARB are not strict in that they are not bound by the rules of evidence by statute (s 464(1) of the MGA ), which clearly overrules a procedural regulation to the extent of any conflict ": Metrowest at para 23 (emphasis added).

The reason why the emphasized portion of Eidsvik J’s quotation is important is that before the Board can exercise its discretion to overrule a procedural regulation, there must be a conflict. This was made clear in Boardwalk Reit LLP v Edmonton (City) , 2008 ABCA 220 , 437 AR 347, 91 Alta LR (4 th )1 at para 78 , where Côté JA said the following: ... Where

an Act can be construed more than one way, courts must reject any alternative which is manifestly absurd, or extremely harsh, unjust, or capricious ... The harsher the result of one

interpretation, the stronger the presumption against it ... [Citations excluded]. [ 45 ] In this case, there is no such conflict. The provisions of MRAC are clear. They impose a deadline for the filing of documents and the only leeway with which the Board is provided is to “expand” the time within which parties must file their documents: MRAC s 10(2). It has the discretion to abridge the time for filing documents with the written consent of the persons entitled to the evidence or other documents: MRAC s 10(3). Beyond that, the Board “must not hear any evidence that has not been disclosed in accordance with

section 8 ”: MRAC s 9(2). [ 46 ] Where is the conflict that would permit the Board to deviate from MRAC such that it can overrule the procedural regulation that the Alberta Legislature has promulgated through the use of MGA s 464(1)? Although the “modern approach” to statutory

interpretation allows courts (and administrative tribunals) to interpret statutes consistently and purposively, they cannot do this in a manner that deviates from the clear wording in the legislation. For example, the Alberta Court of Appeal considered MGA s 688, which requires an appellant to file its notice of appeal within 30 days after the issue of the decision to be appealed.

In Northern Sunrise (Country) v De Meyer , 2009 ABCA 205 at para 7 , 454 AR 88, the Alberta Court of Appeal said the following: Where legislation provides for a specific time period (such as 30 days) for launching an appeal to this Court, and where that legislation does not expressly or impliedly incorporate by reference the Rules of Court AR 390/68 and their curative provisions regarding extending time to appeal, this Court lacks jurisdiction to extend that time period if the limitation is clearly a 'statutory prescription' ... [Citations excluded]. [ 47 ] In the more recent case of Tymchak v Edmonton (Subdivision and Development Appeal Board) , 2012 ABCA 22 at paras 44- 46 , 519 AR 295, Côté JA said the following after posing the question as to whether the Alberta Court of Appeal has the power to relieve against late service of an application for leave to appeal: I do not see how it can.

The Legislature says to serve the notice of motion within 30 days. Many Acts expressly allow the court or a judge to extend such time limits; the Legislature knows how to enact such a power. This Act does not do that. After this many reenactments of this legislation over half a century, that cannot be an accident.

A great many cases hold that statutory time limits relating to commencing proceedings cannot be extended by the courts unless some statute says so ... That law is apt, because the time limits here relate to a stage before the notice of appeal can be filed. The only exceptions where the court can extend time (which I have seen) are some cases which say that where an Act makes the Rules of Court apply, that incorporates by reference the Rules ' time-extension Rules .

There is no such statement in the Municipal Government Act ; even the provision that the usual Court of Appeal procedure is to be followed. [Citations excluded]. [ 48 ] While the Alberta Court of Appeal was dealing with MGA s 688, the principles it outlines apply to the case before this Court.

Neither MRAC nor the MGA contains a provision that would allow the Board or the Court of Queen’s Bench to abridge the time within which a person may provide its disclosure pursuant to MRAC s 8, other than pursuant to MRAC s 10(3) which does not apply in this case, as neither the City nor the Board has consented to the abridgement.

As well, neither MRAC nor the MGA contains a provision that incorporates by reference the provisions of the Alberta Rules of Court , Alta Reg 124/2010 concerning the extension of time. [ 49 ] This conclusion essentially deals with the first issue that the Complainant presented to this Court.

However, this Court finds it necessary to address some of the other arguments that the Complainant presented to it. [ 50 ] The Complainant argues that the Board did not consider such things as the nature and severity of the Complainant’s failure to comply with the time set forth in MRAC s 8(c), the reason why Altus filed the materials after the expiry of the 7-day period, prejudice to the City as a result for the late filing, and the impact that the exclusion of the Impugned Evidence had on the Complainant’s case. These would be cogent arguments absent the clarity of the procedural provisions contained in MRAC .

Said differently, had MRAC or the MGA expressly allowed the Board to abridge the time within which Altus could disclose its rebuttal evidence, without the consent of the City and the Board, this Court might be inclined to review these arguments more closely. Again, the Alberta Legislature did not give this power to the Board. Moreover, MRAC s 9(2) is mandatory in that the Board “ must not hear any evidence that has not been disclosed in accordance with

section 8 .” [ 51 ] The time limits set forth in MRAC are not suggestions, guidelines, or recommendations. They are deadlines. [ 52 ] It is interesting to note that the Board referred to Altus failing to demonstrate extenuating circumstances for late disclosure. Those circumstances could enter into its consideration if it were considering a postponement or adjournment of a hearing.

That factor is not part of its consideration when dealing with late disclosure. [ 53 ] The Complainant argues that the Board, when it chose to exclude the Impugned Evidence, considered the irrelevant fact that Altus showed a pattern of tardiness in the filing of its disclosure. Although the Transcript of Hearing indicates that the Board was less than impressed with Altus’s behaviour, the Decision does not articulate this as a reason for the exclusion of the Impugned Evidence.

This might have been a reason, or even the reason why the Board excluded the Impugned Evidence, but the real reason, as articulated in the Decision, is that the “legislation indicates an absolute deadline.” Thus, the Board’s articulated irritation with Altus does not elevate its decision to an error of law. [ 54 ] In Anterra at para 38 , KD Nixon J said the following: The issue before the CARB was compliance with s 8(2)(

a) of the MRAC ; that is, did the Applicant "disclose" its evidence within the specified time period prior to the hearing.

Interpretation of s 8(2)(

a) of the MRAC by the CARB attracts a standard of reasonableness as this involves

interpretation of its home statute: New Brunswick (Board of Management) v. Dunsmuir , 2008 SCC 9 , [2008] 1 S.C.R. 190 (S.C.C.); A.T.A. v. Alberta (Information & Privacy Commissioner) , 2011 SCC 61 , [2011] 3 S.C.R. 654 (S.C.C.). Deference, therefore, is owed the CARB's decision. So long as its decision falls within "... a range of possible, acceptable outcomes which are defensible in respect of the facts and law ...", a reviewing court should not interfere: Dunsmuir at para 47 . [ 55 ] Why did KD Nixon J find the standard of review to be “reasonableness”?

In Wheaton Investments Ltd. (as represented by its designated agent, Altus Group Limited) v The City of Edmonton and The Edmonton Assessment Review Board and The Minister of Justice and Attorney General for Alberta , (13 April 2012), Edmonton 1203 00607 (QB) at p 3, ll 17-21, Gill J said the following: Now, the question as whether or not the CARB met with legislative requirements under

section 8 and section 9(2) of MRAC is a question of mixed law and fact, in my opinion, that is, that CARB had to review the circumstances relating to the evidence – being the facts – and determine whether or not the provisions of MRAC had been complied – being with the law. [ 56 ] In the case at bar, the range of possible outcomes is narrow. Either the Board was going to allow the Impugned Evidence to be admitted or it would exclude the Impugned Evidence. As mentioned earlier, this Court finds that the Board’s decision to exclude the Impugned Evidence to be reasonable. In fact, this Court goes further.

It finds that the Board’s decision was correct, as the legislation required such a conclusion. [ 57 ] Because of the nature of the question before the Board, which was the

interpretation of provisions of MRAC that gave it little discretion, one has to question whether “fairness” was required to be considered by it. In Dunsmuir , the Supreme Court of Canada said that “[p]ublic decision makers are required to act fairly in coming to decisions”: Dunsmuir at para 79 . That would lead one to believe that “fairness” had to enter into the thought process of the Board when it was considering the question of whether to exclude the Impugned Evidence. The Supreme Court of Canada, however, went on to say that “the existence of a general duty to act fairly will depend on ‘(

i) the nature of the decision to be made by the administrative body; (ii) the relationship existing between that body and the individual; and (iii) the effect of that decision on the individual's rights’”: Dunsmuir at para 88 [citation excluded]. [ 58 ] Because this Court has found that the Board’s discretion was very narrow, the fairness of MRAC is not for the Board to decide.

It must apply it, whether it or the Complainant considers the provisions to be “fair.” This Court has already commented that the Board need not have considered whether there were any “extenuating circumstances” that would justify Altus’s late disclosure. Despite this, the Board did comment on the fact that it found none. [ 59 ] In this case, the Complainant has not demonstrated why this Court should not review the Board’s

interpretation of MRAC

using the deferential standard of reasonableness. Accordingly, the Complainant does not succeed on the first part of the 3-part test, as set forth in the MGA s 470(5). [ 60 ] The second part of the test is whether the question of law or jurisdiction is “of sufficient importance to merit an appeal.” What is “of sufficient importance”? In R v Terroco Industries Ltd , 2004 ABCA 159 at paras 18-19 , 2004 CarswellAlta 638, Wittmann JA, as he then was, said the following: Leave to appeal should be granted only where there is “a question of law of sufficient importance” and not for “error correction”...

A question of law is one of sufficient importance if there is something novel or unsettled about the question ... A decision having wide ranging implications is one of sufficient importance... [ 61 ] As mentioned earlier, the matter before this Court does not involve a question of law or jurisdiction. Even if it did, because it deals with the application of the MRAC provisions and the procedure the Board undertakes, there is nothing novel or unsettled about the question. Nor does it have wide-ranging implications. It is one of mixed law and fact. Certainly, this matter has importance to the Complainant.

That, however, is not the test. As Berger JA said in 845971 Alberta Ltd. v Grande Prairie (City) Subdivision & Development Appeal Board , 2010 ABCA 135 at para 8 , 2010 CarswellAlta 755, “Sufficient importance must be determined on an objective scale and not on the basis of the subjective importance of the matter to the Applicant.” Thus, the Complainant does not succeed on the second part of the 3-part test. [ 62 ] Finally, this Court will address the third part of the 3-part test, namely whether the appeal involves a question that has a reasonable chance of success.

Again, because the Board’s discretion was very narrow, this Court finds that the Complainant does not have a reasonable chance of successfully appealing the Board’s decision concerning its exclusion of the Impugned Evidence. The Board’s decision was reasonable, as well as correct. D. Procedural Fairness and Natural Justice [ 63 ] This issue relates to the Complainant’s argument that the Board, during the Hearing, did not give Altus a reasonable opportunity to respond to the City’s objection concerning the lateness of the Impugned Evidence.

As well, it argues that the Board’s discretion to “punish” the Complainant for Altus’s repeated behaviour of providing late disclosure is a breach of the Board’s duties of procedural fairness and natural justice. [ 64 ] MRAC s 15 provides as follows: 15(1) Except in exceptional circumstances as determined by an assessment review board, an assessment review board may not grant a postponement or adjournment of a hearing.

(2) A request for a postponement or an adjournment must be in writing and contain reasons for the postponement or adjournment, as the case may be.

(3) Subject to the timelines specified in

section 468 of the Act, if an assessment review board grants a postponement or adjournment of a hearing, the assessment review board must

schedule the date, time and location for the hearing at the time the postponement or adjournment is granted. [ 65 ] Although the Supreme Court of Canada discussed procedural fairness in Dunsmuir and the standard of review that reviewing courts should apply when considering this issue, it did not provide reviewing courts with the standard of review they must apply.

It said that procedural fairness “is at issue where an administrative body may have prescribed rules of procedure that have been breached”: Dunsmuir at para 77 . [ 66 ] In Alberta (Securities Commission)v Workum , 2010 ABCA 405 at para 28 , 41 Alta LR (5 th ) 48, 493 AR 1, McDonald JA, for the majority said that “[b]ecause the court decides whether the fairness standard has been met without affording deference, in that sense fairness is reviewed for ‘correctness’.” [ 67 ] In Federated Co-operatives Limited (as represented by its designated agent, Altus Group Limited) v Wheatland County and Wheatland County Composite Assessment Review Board , (8 December 2014), Calgary 1301-08506 (Alta QB) at p 17, ll 12-17, Campbell J considered, among other things, the following ground of appeal: “Did CARB err in law or jurisdiction in failing or refusing to consider rebuttal submissions and case law that was submitted by Federated at the direction of the CARB?” She held as follows: It is not a denial of natural justice or procedural fairness for a tribunal to limit or impose restrictions on the submissions made by the parties before it.

CARB, as an administrative tribunal, has the power to control its own process. The MGA also provides the CARB with the power to determine the admissibility, relevance and weight of any evidence: section 464(1). This would also extend to provide the CARB with the discretion to limit the extent of argument, including any rebuttal submissions. [ 68 ] Unlike the provisions of MRAC , which this Court discussed previously, the MGA provides the Board with discretion. That discretion has to be exercised “fairly,” as articulated in Dunsmuir .

As discussed earlier, the nature of this decision was not to allow Altus an adjournment or postponement to attend its office to gather the email chain and prepare its argument against the exclusion of the Impugned Evidence. As mentioned in the Decision, the Board found no extenuating circumstances, which is the test for a postponement or adjournment. [ 69 ] But Dunsmuir also said that this Court must consider the nature of the decision that the Board made.

Here, the Board was considering whether to grant the adjournment for Altus to gather the email chain, which the City had in its possession and was readily able to present to both Altus and the Board. As well, with respect, this Court wonders exactly what it was that Altus was going to present as an argument. MRAC gives the Board very little leeway when considering whether to exclude the Impugned Evidence. Despite this, it gave Altus an opportunity to address the issue.

[ 70 ] This Court is not surprised with the Board’s decision that it found no exceptional circumstances in this case. In Edmonton (City) v Edmonton (City) Assessment Review Board , 2010 ABQB 634 at paras 35-43 , 37 Alta LR (5 th ) 301, 503 AR 144, Germain J said the following: It is clear that the ARB has been affected in their approach to adjudicative fairness by section 15(1) of the Regulation .

Absent a legislative definition, the ordinary meaning of those words “exceptional circumstance” defaults the ARB into a position where they cannot routinely grant adjournments, even where it may be reasonable to do so, when considering the broader, strategic context ... The legislation also provides guidance to the ARB by including a potentially absolute hearing deadline requirement ... Most tribunals that are entrusted with something as serious as the subject matter of this case are generally expected to act wisely and grant adjournments when circumstances are appropriate.

In this regulation, adjournments may not be granted except in exceptional circumstances. The regulation however must be interpreted contextually, as it is ancillary to the overarching authority given to the ARB to deal with the serious matters of municipal tax assessments ... For this reason the board must both have the power, as well exercise the power appropriately, to ensure that the parties have a fair, complete, and comprehensive hearing ...

The Regulation must therefore be interpreted in such a way that the definition of exceptional circumstance cannot be so narrow and restrictive as to prevent hearings that are fair to both litigants ... See also Arthur J McDonald v The City of Calgary and the Assessment Review Board for the City of Calgary (28 April 2015), Calgary 1201-08010 (Alta QB) [ McDonald ] at p 3, ll 30-38. [ 71 ] The Complainant argues that the Board based its decision on the wholly irrelevant factor of its desire to teach Altus a lesson for its past failures to abide by the filing deadline.

There is reference in the Transcript of Hearing that alludes to this as a factor. This Court, however, does not find that the Board based its decision on that failure. Had the Board based its decision solely on that factor, this Court might take a different approach and find that it was not correct in so doing.

However, the Board considered MRAC , as well as the Chairman’s direction, which were relevant factors. [ 72 ] The Complainant argues that the City’s objection to the rebuttal evidence “took Altus by surprise,” as the City had not provided Altus with notice of its intention to object to the Board’s considering the Impugned Evidence. In McDonald , Anderson J said the following: I also don’t accept the applicant’s argument that the Board breached its duty of procedural [fairness], and erred in allowing the City to present a preliminary application to dismiss the complaint without giving the applicant notice. ...

The applicant knew, or ought to have known, by the instructions given to him with the complaint form, that he had the obligation or burden to provide all relevant facts supporting his complaint, and that any information not disclosed would not be heard by the tribunal . The City simply set out at the outset, to a very busy Board, what its position was going to be with respect to this hearing. McDonald , p 3, ll19-28 (emphasis added). [ 73 ] In the case at bar, Altus and the Complainant had received the complaint form. They knew the deadlines for submitting materials.

Altus knew or ought to have known that it had submitted the Impugned Evidence after the time set forth in MRAC s 8(2)(c). Although not critical to this Court’s decision, Altus had a history of submitting its materials late and the Board had previously censured Altus for “this behaviour.” In the end, this Court agrees with Anderson J that the City’s raising of this issue without giving Altus notice is not a breach of procedural fairness. [ 74 ] In sum, this Court does not find that the Board breached its duties of procedural fairness or natural justice.

Similarly, neither of the Complainant’s arguments are matters that are of sufficient importance to merit an appeal. The Board’s procedural rulings are based on the specific evidence and circumstances of this particular case. Accordingly, the Complainant has no reasonable chance of successfully appealing the Decision on grounds of procedural fairness. E. Equitable Assessment [ 75 ] The Complainant argues that the Assessment was not an equitable assessment. The relevant provisions of the MGA are as follows: 293(1) In preparing an assessment, the assessor must, in a fair and equitable manner, (

a) apply the valuation and other standards set out in the regulations, and (

b) follow the procedures set out in the regulations.

(2) If there are no procedures set out in the regulations for preparing assessments, the assessor must take into consideration assessments of similar property in the same municipality in which the property that is being assessed is located. 467(3) An assessment review board must not alter any assessment that is fair and equitable, taking into consideration (

a) the valuation and other standards set out in the regulations, (

b) the procedures set out in the regulations, and (

c) the assessments of similar property or businesses in the same municipality. [ 76 ]

Section 2 of the Matters Relating to Assessment and Taxation Regulation , Alta Reg 220/2004 [ MRAT ] states as follows:

2 An assessment of property based on market value (

a) must be prepared using mass appraisal, (

b) must be an estimate of the value of the fee simple estate in the property, and (

c) must reflect typical market conditions for properties similar to that property. [ 77 ] The Complainant argues that there are 3 approaches that assessors use to assess the market value of a property, which are the sales comparison approach, the cost approach and the income approach: Alberta Municipal Affairs and Alberta Assessor’s Association, Property Assessment in Alberta Handbook

(2011) Alberta Assessor’s Association: Edmonton 2004) at 4. The City does not contest this. The assessor, acting fairly, must apply the most appropriate approach. In this case, the assessor used the sales comparison approach. The Complainant argues that the assessor should have used the income approach. [ 78 ] It is important for this portion of the discussion to articulate how the Board arrived at the Decision.

The Complainant argues that the way in which the assessor should have assessed the Mission Safeway was through the income approach, because the grocery store on the property “contributes to the value of the property,” and “that the property is maximally productive with its current use as a grocery store.” As well, it argues that “the current assessment is inequitable with other grocery stores, thereby making it less competitive with them.” [ 79 ] The City, on the other hand, argues that “Using the Income Approach to evaluate this property would not reflect its market value, and would make its assessment inequitable with other similar properties” and that “municipalities must assess properties at market value, which may not be reflected by the economic value of Income which is a multi-year function.” [ 80 ] The findings of the Board are as follows: 2.

The Respondent is correct in that municipalities must use mass appraisa1 to find equitable assessments. It would be unfair for properties in the same area, with similar qualities, to be assessed in different ways. If, for example, a property with no improvements had a higher assessment than a very similar one with improvements, this would be inequitable. Although it may be argued that removal of the existing improvements would add extra costs for the prospective purchaser, it may also be argued that existing improvements can finance the cost of holding the property until it is feasible to redevelop it. 3.

The City's list of sales supports assessing properties according to Land Value in cases where the value of the land exceeds the value of the income which the Improvements are producing in any given year. 4. Although Mr. Izard, for Altus, had a very thorough and sometimes supportable argument about highest and best use, he did not provide enough evidence that the subject property was atypical. He did not prove Land Value was not a fair way to assess this property, nor that this property was so different from other properties assessed in the same way that it would be inequitable to use the Land Value assessment.

Decision at 4 and 5. [ 81 ] In 1544560 Alberta Ltd v Edmonton (City) , 2014 ABQB 176 at para 12 , Acton J said that “determination of market value and determination of equity value were two separate steps that the Board was required to do before coming to its decision.” In this case, the Complainant argues that the Board missed the second step. In particular, it argues that the Board failed to compare assessments of similar properties, as required by MGA s 293(2). This is presumptuous.

The Board was aware of the legislation under which it was working, along with the various Board decisions, and decisions of the Court of Queen’s Bench. As well, it referred specifically to Altus’s arguments, and to the list of properties that the City presented to it. As mentioned earlier, the Board’s reasons need not include all the details this Court might have preferred. Nor is the Board required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion.

If the Board’s reasons allow this Court to understand why the Board made its decision and permit this Court to determine whether the conclusion is within the range of acceptable outcomes, it has met the Dunsmuir criteria.

Said differently, this Court must examine the Board’s decision holistically and not try to parse portions of it to see if the outcome is reasonable. [ 82 ] As well, the Complainant argues that the Board confused assessment methodology with the comparison of similar properties, when it said, “If, for example, a property with no improvements had a higher assessment than a very similar one with improvements, this would be inequitable.” This, it argues, compares different properties using different methodologies. This Court disagrees with that

interpretation. This statement simply illustrates a comparison using the sales comparison approach. It says nothing about the income arising from the 2 properties. [ 83 ] The Complainant argues that the Board should have considered “similar businesses,” which, this Court assumes, refers to other grocery stores. That, this Court finds, would be “mixing apples and oranges.” MGA s 293(2) says that the assessor must consider “similar property in the same municipality in which the property that is being assessed is located,” not similar businesses. Similarly, MGA s 467(3)(

c) says that the Board must not alter any assessment that is fair and reasonable taking into consideration “the assessments of similar property or businesses in the same municipality” (emphasis added). Finally, MRAT s 2(

c) says that “An assessment of property based on market value ... must reflect typical market conditions for properties similar to that property ” (emphasis added). This is a land comparison approach. Of course, the assessor might have used an income approach, which would have required the “business analysis” that the Complainant seeks. That is not, however, the methodology that the assessor chose to use. It was within the assessor’s discretion to use whatever methodology it thought best reflected the circumstances with which it was dealing.

The Board found no error in the approach that the assessor took and, for this, this Court must show deference to the Board’s decision. It is not for this Court to find that the assessor should have used a different methodology. This is a question of mixed law and fact. [ 84 ] Furthermore, the Board was well aware of the other grocery stores that Altus was arguing were the most similar and comparable, when it said that Altus “stated that the current assessment is inequitable with other grocery stores, thereby making it less

competitive with them”: Decision at 3. It chose to apply that finding in the manner it saw fit and, pursuant to MGA s 464(1), this Court must show deference to the relevance and weight the Board so chose. As well, MRAT s 2(

b) requires an assessment of property based on market value, to be “an estimate of the value of the fee simple estate in the property.” This is important inasmuch as it requires the assessor to consider the full bundle of rights that attach to the fee simple estate, and not necessarily only the present use of the property. [ 85 ] As a result, the standard of review that this Court must apply when reviewing the Board’s decision is reasonableness. The issue falls squarely within the Board’s area of expertise and requires it properly to apply its home legislation.

As well, this issue is not central to the legal system as a whole. In FHR Real Estate Corp. v Banff (Town) , 2004 ABQB 557 at paras 30-33 , 34 Alta LR (4 th ) 50 [ FHR ] at paras 30-33, Bensler J said that courts should show deference to the Municipal Government Board (which previously heard assessment appeals) with respect to its determinations of equity, when she said the following: The Board routinely reviews property assessments to determine whether they are fair and equitable in relation to the assessments of other taxable properties.

In ensuring fairness, the Board is mandated by the Act to consider the assessment of similar properties. Thus, the Board will have developed a finely honed sense of what factors cause two properties to be “similar” within the context of the legislation and its mandate. As a result of its expertise in relation to this issue relative to the Court’s the Board ought to be afforded deference. I find, therefore, that this factor points to the more deferential end of the spectrum.

Interpretation and application of the term “similar” for the purposes of assessment clearly concerns issues of fairness and equity as between taxable properties. Accordingly, this is a polycentric issue which requires “a delicate balancing between different constituencies”. As such, this factor favours a high degree of deference.

As to the nature of the question, the Court of Appeal in [ Alberta (Minister of Municipal Affairs) v Alberta (Municipal Government Board) , 2002 ABCA 199 ( sub nom Alberta (Minister of Municipal Affairs) v Telus Communications Inc. ) (2002), 6 Alta LR (4th) 199, 312 AR 40] concluded at para. 38: The realities of the marketplace in this case provided the context for statutory

interpretation. The problem before this Board was, accordingly, one of mixed law and fact and the Board was entitled to greater deference than that extended to it by the reviewing judge. This issue required the Board to interpret the term “similar” as it is used in the legislation. In doing so the Board’s decision would have been informed by its knowledge and experience in assessing property. It would also have had regard to the factual similarities and differences between the Hotel and the comparables submitted by the Applicant. The question is, therefore, one of mixed fact and law.

This factor favours the application of a moderate to high standard of deference. [ 86 ] Because the Board considered the comparable properties that the City presented, it undertook the equity analysis of which the Complainant disputes. [ 87 ] Furthermore, the Board was cognizant of the various approaches to assessment that were open to the assessor, and concluded that the income approach would not reflect the Mission Safeway’s “market value” and it “would make its assessment inequitable”: Decision at 4.

Thus, it took an approach that it considered to be equitable, and that reflected market value. [ 88 ] The Board took this approach based on the evidence and the arguments that the parties made before it on October 18, 2011, and October 19, 2011. What the Board decided during earlier or later hearings involving the Mission Safeway and other properties is not relevant to this Court’s analysis of the issues before it. [ 89 ] Because this is a question of fact or mixed law and fact, it is not of sufficient importance to merit an appeal. It does not deal with the Board’s

interpretation of provisions of the MGA . It is applying the MGA provisions to the facts before it. In other words, the Board was simply applying the tests that the Alberta Legislature requires it to apply, based on the facts it had before it. Although it is of importance to the Complainant, it does not meet the objective standard: 845971 at para 8. The Complainant argues that the issue has jurisprudential value as it will provide judicial guidance to the Board on the application of the equity test. As mentioned earlier, that test is already well-known to the Board, as it applies it frequently, if not daily.

Besides, courts have already commented on the proper test, such as in FHR . [ 90 ] For the foregoing reasons, this Court is of the view that the Board acted reasonably in reaching its conclusions and it explained its decision in a way that was justifiable, transparent and intelligible. As a result, the Complainant’s chances of success on appeal of this issue are not strong. Said differently, this issue is not one of law or jurisdiction that can be said to be of sufficient importance to merit an appeal. V.

Conclusion [ 91 ] For the foregoing reasons, this Court dismisses the Complainant’s application in which it seeks leave to appeal the Board’s decision. Heard on the 11 th day of August, 2015, and on February 23, 2016. Dated at the City of Calgary, Alberta this 6 th day of April, 2016.

K.D. Yamauchi J.C.Q.B.A. Appearances: Alexis Teasdale Bennett Jones LLP for the Applicant Nathan W Irving The City of Calgary Law Department for the Respondent The City of Calgary Michael S Janke Janke Law Office for the Respondent The Assessment Review Board for the City of Calgary _______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Mr. Justice K.D. Yamauchi _______________________________________________________ The neutral citation number in the citation line has been corrected to 2016 ABQB 200