Canapen (Phipps-McKinnon) Ltd v Edmonton (City), 2016 ABQB 501

Court of Queen’s Bench of Alberta Citation: Canapen (Phipps-McKinnon) Ltd v Edmonton (City), 2016 ABQB 501 Date: 20160906 Docket: 1503 14631 Registry: Edmonton Between: Canapen (Phipps-McKinnon) Ltd. Applicant - and - City of Edmonton and Edmonton Composite Assessment Review Board Respondents _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice R.A.

Jerke _______________________________________________________ Introduction [ 1 ] An application for leave to appeal the September 3, 2015 decision of the Composite Assessment Review Board (“CARB”) was made by Canapen (Phipps-McKinnon) Ltd. (“Canapen”) under s470 of the Municipal Government Act , RSA 2000, cM-26 (“MGA”).

Canapen filed an affidavit of Chris Buchanan in support of the application. [ 2 ] The City of Edmonton (“Edmonton”) objects to the use of the affidavit and seeks to have it struck pursuant to rule 3.68(4) of the Alberta Rules of Court , Alta Reg 124/2010, on the basis that it is improper and irrelevant. CARB supports that objection but Canapen contends that support falls outside the scope of CARB’s role in this application.

I agree with Canapen so will not consider the position or argument of CARB on this point. [ 3 ] For the purpose of deciding whether admission of the affidavit is appropriate, it is useful to review the framework under

which applications for leave to appeal are decided. In order to grant leave to appeal, the Court must determine whether the applicant hasmet the statutory requirements in s470(5) of the MGA, which are: 1. The issue raised is a question of law or jurisdiction. 2. The appeal involves a question of sufficient importance to merit an appeal. 3. The appeal has a reasonable chance of success. [4] A determination of whether Canapen should be permitted to use the affidavit evidence here requires consideration of twoquestions: 1.

When can affidavit evidence be used to support an application for leave to appeal under s470 of the MGA? 2. What parts of the Buchanan affidavit are objectionable? 1. When can affidavit evidence be used to support anapplication for leave to appeal under s470 of the MGA? [5] Edmonton submits that new evidence that was not before CARB may not be used to support an application for leave toappeal on a question of law or jurisdiction except in very limited circumstances.

I find that evidence is admissible in this application. [6] The record available on the hearing of the appeal is limited by the MGA: 470.1(1) On the hearing of an appeal, (

a) no evidence other than the evidence that was submitted to the assessment review board may be admitted, but the Court ofQueen’s Bench may draw any inferences (

i) that are not inconsistent with the facts expressly found by the assessment review board, and (ii) that are necessary for determining the question of law or the question of jurisdiction, and (

b) the Court may confirm or cancel the decision. ... [7] In Sobeys West Inc. v Edmonton (City), 2015 ABCA 32, Slatter, JA held, when considering a similar provision in s689 ofthe MGA that, “The

section does not, strictly speaking, apply to the application for permission to appeal, only to the ‘hearing of theappeal’.” (para 12). He went on to identify a number of problems which may favour a purposive

interpretation rather than a literalinterpretation: [13] The purpose of s689(1)(

a) is to prevent the litigants from entering “fresh evidence” on the merits or substance of the decision tosupport or undermine the decision of the SDAB. It is intended to prevent the introduction, for example, of new evidence of planningconsiderations. A literal

interpretation of the

section would insulate some important errors of law from review on appeal, somethingwhich could not have been intended: R v Northumberland Compensation Appeal Tribunal, [1952] 1 KB 338 at p354, [1952] 1 All ER 122 at pp 131-2; Alberta Liquor Store Ass’n v Alberta (Gaming and Liquor Commission), 2006 ABQB 904 at para 41, 69 Alta LR (4th)98, 406 AR 104. Examples include: (

a) allegations of a reasonable apprehension of bias, discovered outside the hearing, which are not mentioned on the record. See Milner Power Inc. v Alberta Energy and Utilities Board, 2007 ABCA 265 at para 42, 80 Alta LR (4th) 35, 417 AR 115; (

b) breaches of the rules of natural justice, which also may not be apparent from the record. See for example Sylvester v Pincher Creek (Municipal District No. 9) Subdivision and Development Appeal Board, 2008 ABCA 92 at para 6, 93 Alta LR (4th) 214; Ward vUniversity of Prince Edward Island, (1997), (PE SCTD), 157 Nfld & PEIR 129 at para 21, 3 Admin LR (3d) 1(PEISC); (

c) allegations, such as those in this case, that interested parties were not given notice. The record will often be silent on theexistence or interest of those parties. See for example Coventry Homes Inc. v Beaumont (Town) SDAB, 2001 ABCA 49 paras 36-7, 277AR 278, Harvie v Alberta (Regional Planning Commission Calgary), (1978), 1978 ALTASCAD 361 , 12 AR 505 at paras 1,36-8, 8 Alta LR (2d) 166; (

d) evidence of representations made to the Board, or inferences or assumptions made by the Board in the absence of any specificevidence, which are in fact inaccurate. That also appears to have happened here; and (

e) allegations that something necessary is “missing” from the record, which obviously will not appear on the record: Lethbridge(City) v Daisley, 2000 ABCA 79 at paras 29-31, 83 Alta LR (3d) 239, 250 AR 365. Because of these problems, the Court may not always apply a literal

interpretation to the section, but rather may favour a purposiveinterpretation.

[8] Accordingly, if important errors of law related to problems such as those above are revealed by an affidavit, the affidavit canbe considered when assessing a leave application. [9] The grounds of appeal stated by Canapen in the Originating Application allege that: The Board erred in law by concluding that the 2014 assessment of the Property is accurate. More specifically: (

a) The Board breached principles of natural justice and the duty to be fair by allowing and relying upon evidence that was basedon information that was not disclosed to the Applicant; (

b) The Board erred in law by allowing and relying upon evidence that was not disclosed to the Applicant in accordance withMGA and associated regulations; (

c) The Board erred in law by improperly interpreting or applying the Freedom of Information and Privacy Protection Act, RSA2000 c F-25 when concluding that certain information did not have to be provided to the Applicant; (

d) The Board erred in law by reaching conclusions that were not supported by evidence; (

e) In making their decision, the Board breached principles of natural justice and the duty to be fair, and erred in law, byignoring the evidence of the Applicant, or by failing to provide reasons for ignoring the evidence, when there was no contrary evidencefrom the City; ... [10] These grounds relate to claims that CARB breached the rules of natural justice by relying on evidence and information notdisclosed to Canapen, and made inaccurate inferences or assumptions in the absence of any specific evidence.

Information concerningthese claims may be available in the record, but I find affidavit evidence related to these claims is admissible where it is not available inthe record or to supplement information found in the record. 2. What parts of the Buchanan affidavit are objectionable? [11] The Alberta Rules of Court state an affidavit used to support an originating application "must be confined to (

a) a statement offacts within the personal knowledge of the person swearing the affidavit, and (

b) any other evidence that the person swearing theaffidavit could give at trial" (rule 3.8). This application was made by originating notice, but the relief sought, leave to appeal, is not finalrelief. Under rule 13.18 affidavits for such applications: ...may be sworn (

a) on the basis of personal knowledge, or (

b) on the basis of information known to the person swearing the affidavit and that person’s belief. [12] But there are limits to all affidavits. Arguments, opinions, conclusions, and law should not form part of an affidavit and can bestruck out or ignored. [13] In Alberta Treasury Branches v Leahy, (1999), 1999 ABQB 185 , 234 AR 201, 35 Alta LR (5th) 315 (ABQB),Mason J considered an affidavit alleged to contain inappropriate opinion and argument.

He stated: 84 The purpose of affidavit evidence is to place the necessary facts before the court and should not contain argument, opinions orconclusions: Alberta (Human Rights Commission) v Alberta Blue Cross Plan (1983), 1983 ABCA 207 , 48 A.R. 192 (Alta.C.A.). Affidavits which contain such material have little, if any, probative value and are generally accorded the weight they deserve bythe trier of fact.

However, when a party has brought an application to strike an affidavit on these grounds, the court may go beyondsimple disregard for the objectionable material and strike it out if it agrees that it goes beyond fact. I find support for this view in"Advocacy Considerations Respecting Affidavit Evidence in Chambers Applications" Papers Presented at Mid-Winter Meeting of theCanadian Bar Association, Alberta Branch 1995, Revised Ed. 282, authored by Kenny J. prior to her appointment.

I would emphasize,however, that assertions of fact may well need to be placed in an explanatory or narrative context in order to assist the court inunderstanding the relevance of a particular fact and the relationship between facts. This is not improper in my view. [14] Mason J then went through each contentious

section of the affidavit, striking some and leaving other portions forconsideration. This can be contrasted to Elkow v Sana, 2006 ABQB 851, where the affidavit filed in support of an application to add adefendant was found to contain not fact, but argument, assertion and irrelevant material. As a consequence, the affidavit was struck in itsentirety. [15] In argument Canapen contended that the affidavit was not objectionable because it related to the nature of the grounds ofappeal, the importance of the grounds, and the likelihood of success of the appeal. Affidavit evidence relevant to any of the three

statutory factors and not otherwise found in the record is properly considered. One of the issues here is whether the affidavit does no more than repeat material already in the record. [ 16 ] Some parts of the affidavit are nothing more than a

summary of the proceedings and the evidence before CARB (for example, paragraph 6) and should form part of the brief, not an affidavit. None of this evidence is really contentious, but as it is objected to, the paragraphs should be struck: Alberta Treasury Branches .

The affidavit contains arguments, opinions, and conclusions (for example, paragraphs 16 and 31) which should be struck. [ 17 ] Portions of the affidavit are properly admissible evidence on the leave application because the evidence relates to the claim of a breach of the rules of natural justice by relying on evidence not disclosed to Canapen and evidence based on information not disclosed to Canapen; and the claim that CARB made inaccurate inferences or assumptions in the absence of any specific evidence.

The admissible portions of the affidavit are: • paragraphs 1, 2, and 15; • the second sentence of paragraph 17; • paragraphs 20, 24, 25 and 29; • the first two sentences of paragraph 30 except for the portion “which is plainly incorrect”; and, • paragraphs 34 and 36. Conclusion [ 18 ] The remaining portions of the affidavit are likely of limited value, given the excision of the offending portions.

In the circumstances, Canapen has leave to file a further affidavit. [ 19 ] As proposed by Edmonton, Canapen also has leave to file a supplementary brief identifying relevant portions of the record related to the grounds of appeal for use in the application for leave or in the appeal. [ 20 ] Canapen should pay costs of this application to Edmonton. Remaining issues relative to costs should be addressed at the application. Heard on the 24 th day of May, 2016. Dated at the City of Lethbridge, Alberta this 6 th day of September, 2016. R.A. Jerke J.C.Q.B.A. Appearances: Steven A.

Dollansky, McLennan Ross LLP for the Applicant Tanya Boutin, for the Respondent, City of Edmonton Kate L. Hurlburt, Q.C., Emery Jamieson LLP for the Respondent, Edmonton Composite Assessment Review Board