Castello Management Ltd v Calgary (City), 2016 ABQB 605

Court of Queen’s Bench of Alberta Citation: Castello Management Ltd v Calgary (City), 2016 ABQB 605 Date: 20161026 Docket: 1501 12216 Registry: Calgary Between: Castello Management Ltd. (as Represented by Castello Management Ltd.) Applicant - and - The City of Calgary and the Calgary Assessment Review Board Respondents _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice R.J.

Hall _______________________________________________________ [ 1 ] The Applicant seeks leave to appeal the decision of The Calgary Assessment Review Board (the “Board”), which Decision and Reasons were published September 24, 2015. [ 2 ] Section 470(5) of the Municipal Government Act (“ MGA ”) provides that, for leave to appeal to be granted, the Applicant must satisfy me that the appeal involves a question of law or jurisdiction of sufficient importance to merit an appeal and has a reasonable chance of success. [ 3 ] The Applicant argues that 3 questions of law arise from the Decision of the Board.

I shall discuss them in the order in which they were presented: A. Did the Board err in not considering the Respondent’s evidence as evidence available to the Applicant, to prove that smaller lots have a lesser value per square foot? [ 4 ] The applicant says it is a question of law as to whether the Board considered the Respondent’s evidence in evaluating the

Applicant’s claim; and that failure to do so by the Board is an error of law. [ 5 ] If a Board fails to consider relevant evidence in determining the facts to which the law is to be applied, then that is an error of law. [ 6 ] Therefore on this score there could be a question of law. However, it is clear on the face of the Decision that the Board did not neglect or refuse to consider the Respondent’s evidence. The Board references that evidence at para 15 of its Decision, and it states that, in coming to its conclusion, it has considered all of the evidence.

The Board commented that the applicant failed to call evidence of smaller sized comparables to support its position, which the Applicant concedes. The Board does not say that it did not consider the Respondent’s evidence. The Respondent’s comparables evidence was characterized by the Applicant as being supportive of the Applicant’s assertions. In point of fact, however, while it was arguably supportive, it was by no means conclusive. [ 7 ] No question of law arises here. It is clear on the face of the Decision that the Respondent’s evidence was considered by the Board.

Alternatively, given the Board’s clear statement in its reasons that it considered all of that evidence, this argument has no reasonable chance of success. B.

Did the Board err in deciding there was a temporary adverse effect on the property from construction then taking place, yet fail to recognize that effect as at the valuation date of December 31, 2014? [ 8 ] The Board found that the construction activity would hinder traffic flow to the subject property, but that the hindrance was a temporary restriction, in duration and in daily usage. [ 9 ] There is nothing in that finding to suggest the Board was not assessing the property as at the valuation date of December 31, 2014.

The Board must be taken to say that as at the valuation date the construction will hinder traffic flow to the subject, but such hindrance is temporary. No question of law arises here. C. Did the Board err by fettering its discretion, in that, having determined an adverse affect existed, but was not proven to be the 15% argued by the Applicant, that therefore no reduction would be made at all? [ 10 ] The Board notes, in summarising the Complainant’s position, that the Complainant seeks a 15% reduction due to “restricted access”.

While the Board does not define “restricted access” in its Decision, it is clear from its reasons that “restricted access” is a matter of some permanence and hence can affect the valuation of the property. The Board, in its Decision at para 16(1) says that temporary restrictions such as those complained of by the Applicant are commonly referred to as “limited access”, which, I take from the reasons to be distinguished from “restricted access”. Restricted access has a permanence to it which negatively affects market value.

Limited access, because of its temporary nature, does not affect market value when that value is calculated on the Sales Comparison Approach to Value (“SCAV”). The Board did not fetter its discretion. It applied normal considerations to the SCAV approach. No question of law arises here. [ 11 ] In the result, I find (

a) no question of law has been demonstrated by the Applicant; and (

b) at least the first of the 3 questions or issues raised has no reasonable chance of success. [ 12 ] The Respondent City of Calgary shall have its costs of this Appeal. No costs are awarded for or against the Assessment Review Board. Heard on the 28 th day of September, 2016. Dated at the City of Calgary, Alberta this 26 th day of October, 2016. R.J. Hall J.C.Q.B.A. Appearances: Richard Harrison, Wilson Laycraft for the Applicant Tina Squire, City of Calgary for the Respondent

Michael Janke, Janke Law Group for the Assessment Review Board