Ross v Edmonton (City), 2016 ABQB 730

Court of Queen’s Bench of Alberta Citation: Ross v Edmonton (City), 2016 ABQB 730 Date: 20161221 Docket: 1403 10106 Registry: Edmonton Between: Janet Ross Applicant - and - City of Edmonton and Edmonton Local Assessment Review Board Respondents _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Janet Ross was given leave to appeal the decision of the Edmonton Local Assessment Review Board’s decision which had denied her request to lower the assessment of her residential property from $1,780,000.00 to $1,500,000.00. The two grounds on which Ms.

Ross was given leave are: whether the Review Board failed to apply the legal tests set out in the Municipal Government Act and whether the Review Board endorsed an arbitrary approach to property assessment. [ 2 ] The appeal is allowed: the Ross claim is returned to the Board for reconsideration. [ 3 ] Despite leave to appeal having been granted on a legal issue, the standard of review here is reasonableness.

Although this Board meets one prong of the legal issue test for correctness rather than reasonableness because it has no expertise in legal matters, the legal issue in question – the burden of proof on assessment appeal hearings - is not of central importance to the legal system. [ 4 ] Here, the Board made a legal error in failing to distinguish between the initial evidentiary burden of proof, i.e. requiring the

claimant to lead some evidence, and the ultimate or legal burden of proof, i.e. requiring the claimant to prove, on a balance ofprobabilities, that the assessment was unfair and inequitable. The Municipal Government Act does not statutorily change the burden ofproof for these proceedings; s. 460 of the MGA merely requires an assessed owner to provide what amounts to pleadings for the hearing.This Board committed an error of law in requiring Ms. Ross to prove that her assessment was incorrect before requiring the City toengage; Ms. Ross had put forward some evidence that the assessment was incorrect.

In such a situation, the evidentiary burden shifted tothe City. This shift was not recognized by the Board. This Board was required, by statute and at common law, to provide reasons for itsdecision to adopt a burden of proof that was different from the legal burden of proof. The Board simply did not, in its decision, addressthe issue of the legal burden of proof; it did not even provide a conclusory statement about the burden of proof.

Had the Board providedreasons for departing from the correct burden analysis, this court would, of course, have embarked upon a reasonableness assessment.Because the standard of review on appeal is deferential, it is particularly important for the tribunal whose decision is being appealed togive adequate reasons for its decision.

In the absence of reasons by the Board in relation to the legal burden, this reviewing court canonly conclude that the Board’s departure from a correct legal analysis was unreasonable. [5] However, where, as here, the standard of review is reasonableness, even an unreasonable legal conclusion might still besaved if the overall decision of the tribunal is reasonable: Wood Buffalo. In relation to the substantive issue, the Board did not give whatthe law describes as “reasons”; overall, it only provided conclusory statements.

As stated previously, this Board was required, by statuteand by common law, to give reasons for its substantive conclusions. It did not do so. As one example, the Board did not address Ms.Ross’ argument to the effect that, even based on the City’s own evidence - comparables which were not, in her view, fair comparables -the City had proved that her assessment was unfair. As another example, the Board did not address how any assessed person could provethat their assessment was unfair and inequitable where, as here, the City refused to divulge the basis on which it transposed comparablesto other properties. [6] In

summary, the Board’s

interpretation of the MGA as it applied to the Ross hearing was unreasonable. In light of thatconclusion, this reviewing court has not gone on to consider the second ground on which leave to appeal was granted. Cases and authority cited [7] By Ms. Ross: Ross v.

Edmonton (City), 2015 ABQB 495; Municipal Government Act, RSA 2000, c M-26; Matters Relatingto Assessment and Taxation Regulation, AR 220/2004; 1544560 Alberta Ltd v Edmonton (City), 2015 ABQB 520; Edmonton (City) vEdmonton East (Capilano) Shopping Centres Ltd, 2016 SCC 47; 1544560 Alberta Ltd v Edmonton (City), 2014 ABQB 176; GSLChevrolet Cadillac Ltd v Calgary (City), 2013 ABQB 318. [8] By the City of Edmonton: Edmonton School District No 7 v Dorval, 2016 ABCA 8; Wood Buffalo (RegionalMunicipality) v Alberta (Energy and Utilities Board), 2007 ABCA 192; Calgary (City) v Alberta (Municipal Government Board), 2010ABQB 719; Altus Group Ltd v Edmonton (City), 2014 ABQB 657; Campbell v Edmonton, 2014 ABQB 742; Lethbridge (City) vDaisley, 2000 ABCA 79; Genesis Land Development Corp v Calgary (City), 2014 ABQB 57; Excerpt, Sopinka, Lederman and Bryant,The Law of Evidence in Canada; Shinkaruk v Edmonton (City), MGB DL 085/05; Mainstreet Equity Corp v Edmonton, 2016 ECARB01577; Eco-Industrial Business Park Inc v Edmonton (City), 2014 ABQB 421; Edmonton (City) v Alberta (Edmonton CompositeAssessment Review Board), 2012 ABQB 171; Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (TreasuryBoard), 2011 SCC 62; McLean v British Columbia (Securities Commission) 2013 SCC 67; Nor-Man Regional Health Authority Inc. vMAHCP 2011 SCC 59; C.R.

Coatings & Painting Inc. v International Union of Painters and Allied Trades Local 1439 2014 NSCA40; Victoria University (Board of Regents) v GE Canada Real Estate Equity 2016 ONCA 646. [9] By Edmonton Local Assessment Review Board: Excerpts from the Municipal Government Act, RSA 2000, c.

M-26, asamended; Excerpts from the Matters Relating to Assessment and Taxation Regulation, Alta Reg 220/2004, as amended; Excerpts fromthe Matters Relating to Assessment Complaints Regulation, Alta Reg 310/2009, as amended; 1447743 Alberta Ltd v Calgary (City),2011 ABCA 84; Leon's Furniture Limited v Alberta (Information and Privacy Commissioner), 2011 ABCA 94; Ontario (EnergyBoard) v Ontario Power Generation, 2015 SCC 44; Dunsmuir v New Brunswick, 2008 SCC 9; Edmonton (City) v Alberta (City ofEdmonton Composite Assessment Review Board), 2012 ABQB 171; Canada Safeway Ltd v Calgary (City ), 2016 ABQB 200; CalgaryHoteliers Inc v Calgary (City), 2016 ABQB 388; Genesis Land Development Corp v Calgary (City), 2014 ABQB 57. [10] By the court: Janet M.

Ross v The City of Edmonton 2014 ELARB 01123; Winship v Stantec Consulting Ltd. 2016 ABQB468; Baker v Canada (Minister of Citizenship and Immigration (SCC), [1999] 2 S.C.R. 817; Canada (Citizenshipand Immigration) v. Khosa 2009 SCC 12; Gray v. Ontario (Disability Support Program, Director) (ON CA), [2002]O.J. No. 1531 (C.A.); Canada (Attorney General) v. Igloo Vikski Inc, 2016 SCC 38. Appendix A: Reasons for decision of the Edmonton Local Assessment Review Board Appendix B: Extracts from the Municipal Government Act 1. Background

a) Factual [11] Janet Ross is the owner and resident of a residential property in the Quesnell Heights neighbourhood of Edmonton. In 2014,the City of Edmonton assessed the Ross property at $1,790.000.00, which was a 24% increase from the previous year. The averagechange of assessment in the Quesnell Heights neighbourhood in 2014 was a decrease of 4.4%. [12] Ms. Ross appealed the assessment of her residence, properly filling out the forms required by s. 460 of the MunicipalGovernment Act.

She claimed that her property should be assessed at $1,500,000.00. [13] A market evaluation of the Ross property from a real estate firm familiar with real estate in the general area where the Rossproperty is located estimated the market value of the property at $1,510,000.00. An estimate of repairs necessary to the main structure ofthe property totalled nearly $200,000.00 consisting of repairs to the roof and shingles and the possible separation of a recent addition

from main structure. [ 14 ] The City of Edmonton provided evidence of two “sales comparables” and two “equity comparables”. Using those comparables – which she rejected as being comparable – Ms. Ross calculated that the City’s own approach validated her request for a reduced assessment. [ 15 ] For ease of reference, an extract, entitled “Reasons for Decision”, from the Review Board’s decision is set out at Appendix A.

b) Legislative [ 16 ] The pertinent provisions of the Municipal Government Act are set out in Appendix B. 2. The standard of review here is reasonableness [ 17 ] The appellant, Ms. Ross, and the respondent, City of Edmonton, agree that the standard of review on this appeal is reasonableness. Both rely on the Supreme Court of Canada’s decision in Capilano , a decision that was unavailable to the judge who granted leave in this case, but the result of which was anticipated by her.

The Capilano decision makes it unnecessary for this court to embark upon a detailed assessment of standard of review principles. [ 18 ] However, this court was concerned about the basis of the parties’ acceptance of the Capilano result. The respondent City of Edmonton particularizes that “it is now settled law that the standard of review on a decision of the Board, interpreting the MGA, is reasonableness”. My main concern is that the SCC did not, in Capilano , decide that all appeals from this Review Board, and all similar Review Boards, were always to be decided on a standard of deference, i.e. reasonableness.

On the contrary, the SCC decided that an appeal court should begin by considering whether the issue on appeal involves the

interpretation by the Board of its own statute. In Capilano , it was clear that that the issue was whether the Board had powers under s. 467(1) of the MGA. Here, for the reasons that will be expanded upon below, it is not clear that, in resolving the matter before it, the Board was interpreting any particular

section of the MGA or even the MGA itself. Even if the issue of statutory

interpretation is resolved, the SCC reminded us that the four Dunsmuir exceptions to reasonableness continue to apply to this Board and tribunals of its type. The specific Dunsmuir exception which must be considered here is whether the appeal raises a question which is both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise. [ 19 ] After considering the parties’ additional submissions on the standard of review in the circumstances here, I have come to agree with their conclusion: the applicable standard is deference, i.e. reasonableness.

In coming to that conclusion, I have noted that, while this Board has no expertise in general legal matters, such as the burden in civil litigation, the application of the concept of the burden of proof as it was developed by this Board would be extremely unlikely to be considered to be a matter of concern by the legal system as a whole: any harm done by a wrong approach by this Board would likely only affect other panels of this Board. 3. The Board’s decision is unreasonable. It is unreasonable on a crucial legal issue: the correct burden analysis here required Ms.

Ross to provide, initially, only some evidence of an unfair and inequitable assessment; when that threshold was crossed, the evidentiary burden switched to the City. The Board did not recognize this distinction between the initial, and the ultimate, burden of proof. Because the Board did not provide sufficient reasons for departing from the correct burden analysis, this reviewing court can only conclude that the Board’s conclusion on a question of law is, without more, unreasonable. The Board’s decision is also unreasonable when assessed overall. The Board’s conclusion that Ms.

Ross had to prove that the assessment was unfair and inequitable was unreasonable in light of the enormous information imbalance between the parties and the City’s refusal to provide information on how “comparables” are applied to other properties. A. The Board’s decision was unreasonable on a crucial question of law: the burden of proof [ 20 ] The Board’s approach to the burden of proof in this matter is set out in paragraph 30 of its decision: see Appendix A. In the first sentence of that paragraph, the Board stated that it considered the evidence and arguments of both parties.

It then went on, in the second sentence, to conclude that Ms. Ross did not “provide sufficient evidence with respect to sales, assessments, or any other matter” to establish that the assessment was incorrect. Next, it stated, explicitly, that the “onus of proving incorrectness of an assessment is on the complainant”. Finally, it stated that the market evaluation submitted by Ms. Ross did not provide “sufficient evidence to prove the incorrectness of the assessment”.

These comments might have been acceptable if they had been made in relation to the ultimate burden of proving that the assessment was incorrect; that burden was clearly on Ms. Ross.

However, the way in which the Board reached its conclusion is made explicit in paragraph 36 of its decision (see Appendix A). [ 21 ] As will be demonstrated below, the correct analysis of the burden of proof on hearings before the Board is that a complainant must initially provide only some evidence that the assessment is incorrect, after which the evidentiary onus switches to the City to provide evidence that the assessment is correct. After hearing all submissions on all the evidence, the Board should have decided whether the assessment of the Ross property was fair and equitable. Here, Ms.

Ross had provided some evidence that the assessment was incorrect; the City then provided evidence which the Board rejected; the Board was then presumably left only with Ms. Ross’ evidence; Ms. Ross’ claim should therefore have been accepted. The Board’s actual approach was incorrect. [ 22 ] However, correctness is not the standard of review. Had the Board given reasons for its departure from the correct burden analysis, this court might have been able to agree that the Board’s approach was reasonable.

In the absence of any reasons for departing from the correct burden analysis, this court can only conclude that the Board’s departure was unreasonable.

a) The ordinary burden of proof in civil matters is that a claimant must, initially, provide only some evidence in support of its claim; once that threshold is met, the evidentiary burden shifts to the respondent

[ 23 ] In civil proceedings, a claimant must, initially, only provide some evidence in support of its claim. Once that threshold is satisfied, the evidentiary onus switches to the respondent, here the City, to lead evidence.

The way in which the test operates was outlined recently by Goss J. in Winship : [3] Rule 8.20 states: At the close of the plaintiff's case, the defendant may request the Court to dismiss the action on the ground that no case has been made, without being asked to elect whether evidence will be called. [4] The test on a rule 8.20 (non-suit) application is set out in Prudential Securities Credit Corp, LLC v Cobrand Foods Ltd, 2007 ONCA 425 at para 35 , 85 OR (3d) 561: On a non-suit motion, the trial judge undertakes a limited inquiry. Two relevant principles that guide this inquiry are these.

First, if a plaintiff puts forward some evidence on all elements of its claim, the judge must dismiss the motion. Second, in assessing whether a plaintiff has made out a prima facie case, the judge must assume the evidence to be true and must assign "the most favourable meaning" to evidence capable of giving rise to competing inferences. ... [5] Our Court of Appeal adopted this test in Capital Estate Planning Corp v Lynch , 2011 ABCA 224 at para 19 , 510 AR 244 [ Capital Estate ]; and recently cited it with approval in Elan Construction Ltd v South Fish Creek Recreational Assn , 2016 ABCA 215 , [2016] A.J.

No. 710 at para11 (QL). [6] In Capital Estate at para 20 , the Court rephrased the test this way: In short, a non-suit application will fail if the plaintiff has adduced some evidence on each of the essential elements of her claim. In making this assessment, the trial judge does not weigh the evidence or assess credibility. Furthermore, the trial judge must assume that the plaintiff's evidence is true, and draw all reasonable inferences from it. ... [ 24 ] It is important to recognize that the hearings before the Board were not a

summary judgment application; therefore, there was no obligation on Ms. Ross to prove her case on a balance of probabilities before the evidentiary burden shifted to the City to make a response. [ 25 ] In any civil matter, the respondent – here the City – is not obliged to call evidence to respond to the claimant’s evidence; however, the respondent takes an obvious risk in not calling evidence.

b) The ordinary burden of proof was not statutorily varied for Board hearings [ 26 ] A statute can, of course, establish - for matters coming within its ambit - a burden of proof which is different from the usual standard of proof. [ 27 ] As the Supreme Court of Canada noted in Capilano , it is possible – perhaps even salutary - for legislation to establish the standard of review in relation to proceedings under that statute. A statutory standard of review could be different from the otherwise applicable judicially developed standard of review.

The MGA does state that the ordinary laws of evidence do not apply in proceedings before the Board. A similar approach might have been taken in the legislation with respect to the burden of proof; however, this Alberta legislation does not set any statutory standard for the burden of proof.

c) Here, Ms. Ross did provide some evidence that the assessment was unfair and inequitable; in other words, she met the prima facie test [ 28 ] Ms. Ross initially provided three types of evidence that her assessment was incorrect: the nearly 25% increase from the previous year, coupled with the average decrease in her neighbourhood, evidence that her home required substantial repairs and renovations; and a market evaluation from a realtor. [ 29 ] In addition to her own evidence, Ms. Ross also applied the City’s comparable square foot evaluations to show that, even applying that evidence, the assessment of her home was incorrect.

d) The Board departed from the ordinary principle of law when it required Ms. Ross to prove that the assessment was incorrect before assessing the totality of the evidence before it [ 30 ] Paragraph 36 of the Board’s reasons illustrates this Board’s misunderstanding of the burden of proof: it required Ms. Ross to shoulder the ultimate burden before calling on the City.

e) This Board was required to give reasons which reasons must be assessed within a context of deference [ 31 ] This Board has a statutory obligation to give reasons: s. 468(1) MGA. [ 32 ] On a reasonableness review, it appears from Capilano that a reviewing court must, however, consider not any statutory obligation to give reasons, but whether there was a breach of procedural fairness. [ 33 ] The Newfoundland and Labrador Nurses Union decision to which the SCC referred in Capilano makes the following comments about the obligation to give reasons: 20 Procedural fairness was not raised either before the reviewing judge or the Court of Appeal and it can be easily disposed of here.

Baker stands for the proposition that "in certain circumstances", the duty of procedural fairness will require "some form of reasons" for a decision (para. 43). It did not say that reasons were always required, and it did not say that the quality of those reasons is a question of

procedural fairness. In fact, after finding that reasons were required in the circumstances, the Court in Baker concluded that the merenotes of an immigration officer were sufficient to fulfil the duty of fairness (para. 44). . . . 22 It is true that the breach of a duty of procedural fairness is an error in law. Where there are no reasons in circumstances where theyare required, there is nothing to review. But where, as here, there are reasons, there is no such breach.

Any challenge to thereasoning/result of the decision should therefore be made within the reasonableness analysis. [34] The reference to Baker takes us back to that decision: The Provision of Reason [37] More generally, the traditional position at common law has been that the duty of fairness does not require, as a general rule, thatreasons be provided for administrative decisions: Northwestern Utilities Ltd. v. City of Edmonton, (SCC), [1979] 1S.C.R. 684; Supermarchés Jean Labrecque Inc. v. Flamand, (SCC), [1987] 2 S.C.R. 219, at p. 233; Public ServiceBoard of New South Wales v.

Osmond (1986), 159 C.L.R. 656 (H.C.A.), at pp. 665-66. . . . [38] Courts and commentators have, however, often emphasized the usefulness of reasons in ensuring fair and transparent decision-making. Though Northwestern Utilities dealt with a statutory obligation to give reasons, Estey J. held as follows, at p. 706, referring tothe desirability of a common law reasons requirement: This obligation is a salutary one.

It reduces to a considerable degree the chances of arbitrary or capricious decisions, reinforces publicconfidence in the judgment and fairness of administrative tribunals, and affords parties to administrative proceedings an opportunity toassess the question of appeal... .

The importance of reasons was recently reemphasized by this Court in Reference re Remuneration of Judges of the Provincial Court ofPrince Edward Island, (SCC), [1997] 3 S.C.R. 3, at paras. 180-81. . . . [43] In my opinion, it is now appropriate to recognize that, in certain circumstances, the duty of procedural fairness will require theprovision of a written explanation for a decision.

The strong arguments demonstrating the advantages of written reasons suggest that, incases such as this where the decision has important significance for the individual, when there is a statutory right of appeal, or in othercircumstances, some form of reasons should be required. This requirement has been developing in the common law elsewhere. Thecircumstances of the case at bar, in my opinion, constitute one of the situations where reasons are necessary.

The profound importance ofan H & C decision to those affected, as with those at issue in Orlowski, Cunningham, and Doody, militates in favour of a requirementthat reasons be provided. It would be unfair for a person subject to a decision such as this one which is so critical to their future not to betold why the result was reached. [35] Baker was, of course, considering a situation where there was no statutory obligation to give reasons; that decision isauthority for the proposition that, in some cases, even where there is no statutory obligation to do so, procedural fairness requires thatreasons be given.

Here, not only is there a statutory obligation to give reasons, under the Baker analysis there would be a common lawduty to give reasons: there is a statutory right of appeal, on a question of law, if leave is granted and the decision has an importantfinancial significance for the assessed person. [36] In the result, in the circumstances here, a failure to give reasons amounts to a breach of procedural fairness. [37] There is a further complication in the law relating to the obligation to give reasons which arises from the obligation on areviewing court to consider what reasons could have been given by a tribunal when it did not give reasons or not give adequate reasons.This obligation is somewhat akin to the obligation for a sentencing court to consider what a jury might have found as sentencing facts.The obligation to consider the possibility of reasons was established in Baker at para. 65. [38] Where the law requires reasons and there is an absence of reasons or of adequate reasons, and the standard of review isreasonableness, at paragraph 65 of Baker it appears that reviewing courts are required to consider reasons “that could be offered”: Professor Dyzenhaus has articulated the concept of "deference as respect" as follows: Deference as respect requires not submission but a respectful attention to the reasons offered or which could be offered in support of adecision... . (D.

Dyzenhaus, "The Politics of Deference: Judicial Review and Democracy", in M. Taggart, ed., The Province of Administrative Law(1997), 279, at p. 286.). [Emphasis added] [39] Nonetheless, as the SCC reminded us in Khosa: 63 The Dunsmuir majority held: A court conducting a review for reasonableness inquiries into the qualities that make a decision reasonable, referring both to the processof articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification,transparency and intelligibility within the decision-making process.

But it is also concerned with whether the decision falls within a

range of possible, acceptable outcomes which are defensible in respect of the facts and law. [para. 47] Dunsmuir thus reinforces in the context of adjudicative tribunals the importance of reasons, which constitute the primary form ofaccountability of the decision maker to the applicant, to the public and to a reviewing court.

Although the Dunsmuir majority refers withapproval to the proposition that an appropriate degree of deference "requires of the courts "not submission but a respectful attention tothe reasons offered or which could be offered in support of a decision"" (para. 48 (emphasis added)), I do not think the reference toreasons which "could be offered" (but were not) should be taken as diluting the importance of giving proper reasons for anadministrative decision, as stated in Baker v. Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2S.C.R. 817, at para. 43.

Baker itself was concerned with an application on "humanitarian and compassionate grounds" for relief from aremoval order. [Emphasis added] [40] In

summary, case law has established the following principle: where there is a duty on a tribunal to give reasons, either tosatisfy a statutory requirement or to satisfy a common law duty of procedural fairness, a reviewing court should review the reasons givenor which could have been given within the context of deference.

f) In the absence of reasons from the Board explaining why it departed from the ordinary burden of proof, the reviewing court canonly conclude that the Board’s decision to depart from the correct analysis of the burden of proof was unreasonable [41] Had the Board given reasons for departing from the legal burden of proof, this court would, of course, have considered them.For example, the Board might have said that it construed s. 460 of the MGA as establishing the burden of disproving correctness on aclaimant. That

interpretation of the

section would have been wrong: s. 460 merely establishes a requirement for what amounts topleadings before the Board. However, a misinterpretation of the

section could have been reasonable, depending on the reasons given: thisis the administrative law equivalent of the requirement in mathematics to show your reasoning.

g) Unreasonableness on a question of law [42] In

summary, the Board’s imposition of an ultimate burden rather than an initial burden on Ms. Ross was unreasonable. B. The Board’s decision was unreasonable in applying the evidence; overall, the Board’s decision was unreasonable

a) Analysis on a reasonableness basis cannot end on a finding that the

interpretation of the enabling statute is unreasonable [43] Administrative law is clear: in weighing reasonableness where that is the appropriate standard of review, a reviewing courtmust not parse out the different facets of a tribunal’s decision, but must assess the overall reasonableness of the tribunal’s decision. In thiscontext, a tribunal’s obligation to give reasons applies equally to fact findings and to decisions on legal issues. The analysis of theobligation to give reasons in the context of this Board’s choice to apply the ultimate burden on Ms.

Ross at the initial stage apply equallyto the factual decisions reached by the Board. This Board had to give reasonable reasons for its factual decisions: suffice it to say thatthere is a statutory obligation on this Board to give reasons, there is a legitimate expectation to receive reasons on the part of Ms. Ross,and the difference of approximately $380,000.00 in the assessed value is a matter of importance to Ms. Ross.

I will just add the followingcomments. [44] As the case law makes clear, the obligation to give reasons is heightened where the standard of review is reasonableness.How can a reviewing court judge reasonableness unless adequate reasons are given?

In Gray, the Ontario Court of Appeal added supportfor the Federal Court of Appeal’s commentary that the obligation to give reasons is particularly important where the decision is revieweddeferentially, i.e. on a standard of reasonableness: [22] Recently, the Federal Court of Appeal considered the nature and extent of a statutory duty to give reasons in VIA Rail Canada Inc.v. Canada (National Transportation Agency), (FCA), [2001] 2 F.C. 25, 193 D.L.R. (4th) 357 (C.A.). Sexton J.A. saidat pp. 35-36 F.C.: The duty to provide reasons is a salutary one.

Reasons serve a number of beneficial purposes including that of focussing the decisionmaker on the relevant factors and evidence. In the words of the Supreme Court of Canada: Reasons, it has been argued, foster better decision making by ensuring that issues and reasoning are well articulated and, therefore, morecarefully thought out. The process of writing reasons for decision by itself may be a guarantee of a better decision. [Baker v.

Canada(Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817, at p. 845.] Reasons also provide the parties with the assurance that their representations have been considered. In addition, reasons allow the parties to effectuate any right of appeal or judicial review that they might have. They provide a basis for anassessment of possible grounds for appeal or review. They allow the appellate or reviewing body to determine whether the decisionmaker erred and thereby render him or her accountable to that body.

This is particularly important when the decision is subject to adeferential standard of review. . . . . . The duty to give reasons is only fulfilled if the reasons provided are adequate. What constitutes adequate reasons is a matter to bedetermined in light of the particular circumstances of each case. However, as a general rule, adequate reasons are those that serve thefunctions for which the duty to provide them was imposed.

In the words of my learned colleague Evans J.A., "[a]ny attempt to formulatea standard of adequacy that must be met before a tribunal can be said to have discharged its duty to give reasons must ultimately reflectthe purposes served by a duty to give reasons." [See J.M. Evans, Administrative Law: Cases, Text and Materials (4th ed.), (Toronto:Emond Montgomery, 1995), at p. 507.]

The obligation to provide adequate reasons is not satisfied by merely reciting the submissions and evidence of the parties and stating aconclusion. Rather, the decision maker must set out its findings of fact and the principal evidence upon which those findings were based.The reasons must address the major points in issue. The reasoning process followed by the decision maker must be set out and mustreflect consideration of the main relevant factors. [See: Northwestern Utilities et al. v. City of Edmonton, (SCC), [1979]1 S.C.R. 684, at p. 706-707; Desai v. Brantford General Hospital; Desai v. St.

Joseph's Hospital (1991), (ON SCDC),87 D.L.R. (4th) 140 (Ont. Div. Ct.), at p. 148; Suresh v. Canada (Minister of Citizenship and Immigration), (FCA),[2000] 2 F.C. 592 (C.A.), at pp. 637, 687-688.] [Emphasis added] [45] It will be noted, of course, that this Board did not recite the submissions and evidence of Ms. Ross and the City and addresswhy it preferred one over the other with respect to the major points in issue. Despite the onus on a tribunal to provide functional reasons,this reviewing court must remind itself that a tribunal’s reasons are not held to a standard of perfection.

As the SCC held in Igloo Vikski,they must only be adequate: 18 Reasonableness review is concerned with the reasonableness of the substantive outcome of the decision, and with the process ofarticulating that outcome. The reasoning must exhibit "justification, transparency and intelligibility within the decision-making process":Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47. The substantive outcome and the reasons, consideredtogether, must serve the purpose of showing whether the result falls within a range of possible outcomes: Newfoundland and LabradorNurses' Union v.

Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, at para. 14. While the adequacy of atribunal's reasons is not on its own a discrete basis for judicial review, the reasons should "adequately explain the bases of [the]decision": Newfoundland Nurses, at para. 18, quoting from Canada Post Corp. v. Public Service Alliance of Canada, 2010 FCA 56,[2011] 2 F.C.R. 221, at para. 163 (per Evans J.A., dissenting), rev'd 2011 SCC 57, [2011] 3 S.C.R. 572.

b) Overall, the Board’s reasons on the assessment itself were unreasonable (

i) The reasons for disregarding the increase in assessment from the previous year were reasonable [46] The Board gave reasons for concluding that Ms. Ross’ concern about the year-to-year nearly 25% increase in her assessmentwas unfounded: see para. 31 at Appendix A. Those reasons are reasonable: since assessments are based on market value, the marketmight spike or tumble from one year to the next. (ii) The reasons for disregarding the evidence about repairs/renovations were unreasonable [47] The Board’s reasons for concluding that Ms.

Ross’ reliance on the cost of renovations and remediations are unfounded. [48] The Board’s reasons for rejecting Ms. Ross’ evidence and submissions on the renovations and remediations are set out atpara. 32 of Appendix A. The main problem with the Board’s reasons in this area is the absence of any comment whatsoever in relation tothe problem arising from “the addition separating from the main structure” mentioned in a note at the bottom of the quote from HollandCustom Renovations. Given the engineering cost, the soil testing cost and the potential structural remediation may well “exceed over$100,000”.

Through her agent, Ms. Ross further explained the physical evidence leading to a concern that the addition was in factseparating from the main home. A separation problem is not a general maintenance problem. The amount quoted by the renovation firmto deal with the separation problem is, of course, in addition to the nearly $100,000.00 of the quote itself. There was, therefore, someevidence of approximately $200,000.00 in renovations and remediations which the Board had to consider. [49] The City’s reasons for not accepting the renovation quote in relation to decks was answered by Ms. Ross in her Rebuttal.

TheBoard’s reasons for rejecting Ms.

Ross’ position and Rebuttal are not reasonable in relation to the deck because they do not address Ms.Ross’ evidence at para. 3 of her Rebuttal. [50] The Board’s reasons also appear to be wrong in that they refer to “normal deterioration of a structure of this age” whereas theevidence before the Board was to the effect that there was a relatively recent major addition to the property with respect to which therewere obvious fault lines which may require the repair of the building’s foundation; that was not addressed in the reasons. [51] Finally, on the issue of repairs and reparations, the Board’s reasons accept the City’s explanation for the lack of inspectionwithout addressing Ms.

Ross’ detailed explanation of the background to the inspection issue: see para. 1 of her Rebuttal at page 035 ofthe Record. (iii) The reasons for disregarding the market valuation were unreasonable [52] The Board did not give reasonable reasons for concluding that the market evaluation prepared by Lear Real Estate Ltd. did notprovide sufficient evidence to establish that the market evaluation by the City was incorrect. [53] I have earlier concluded that Ms.

Ross’ initial burden was merely to provide some evidence; the Lear evaluation was clearlysome evidence. [54] In any event, the Board’s statement of insufficiency was a conclusion rather than reasons; a mere conclusory statement, ratherthan reasons, would be a sufficient basis on which to allow the appeal if the standard were correctness.

However, in the circumstanceshere, where the standard is deference, the court must look at the reasons which the Board might have, or could have, given for statingthat the Lear opinion was wrong. [55] The City argued that the Lear report did not give specifics of sales in the area. However, the evidence was to the effect thatthere were few recent sales in the area. The Lear report did, however, provide some evidence of sales of some properties that had somesimilarities to the Ross property, i.e. they were in the general area, they abutted the river, they were recent, they were discoverable by theCity.

[ 56 ] The City also argued that the Lear report did not provide sufficient evidence of assessments. There is, of course, an enormous information imbalance between a property owner and the City in matters of assessment. For example, the City maintained that the appropriate comparable was not the Quesnell Heights area itself, but rather the River Valley zone.

That might well be true; but that is information about the City’s assessment practice that would not necessarily be known to an assessed person. [ 57 ] More importantly, during the course of the hearing before the Board, the City took the somewhat strange position that it would not disclose the way in which assessments of alleged “comparables” were measured against the subject property. It is therefore impossible for an assessed person to provide “sufficient” evidence that an assessment is incorrect. [ 58 ] Ms.

Ross even used the City’s comparables and the City’s per square foot values to establish a value for her property which value was consistent with the Lear evaluation. 4. Conclusion [ 59 ] For the reasons set out above, the Edmonton Local Assessment Review Board’s decision on the Ross complaint applied an unreasonable test on Ms. Ross; this may have arisen through a misinterpretation of the Municipal Government Act .

In light of this conclusion, it is not necessary for this court to consider the second basis on which leave to appeal was granted – whether this Board endorsed an arbitrary approach to property assessment. The Ross complaint is returned to the Board for reconsideration. 5. Costs [ 60 ] If the parties are not agreed on costs, I may be spoken to within 30 days of the release of this decision. Heard on the 9 th and 15 th days of December, 2016. Dated at the City of Edmonton, Alberta this 21 st day of December, 2016. J.B. Veit J.C.Q.B.A. Appearances: Steven A.A.

Dollansky, McLennan Ross LLP for the Applicant Michael S. Gunther, City of Edmonton Law Branch for the Respondent, City of Edmonton Kate L. Hurlburt, QC, Emery Jamieson LLP for Respondent, Edmonton Local Assessment Review Board APPENDIX A: EXTRACT FROM THE DECISION OF THE EDMONTON LOCAL ASSESSMENT REVIEW BOARD Reasons for the Decision [30] After review and consideration of the evidence and argument presented by both parties the Board determined the 2014 assessment of the subject property at $1,790,000 to be fair and equitable.

In determining whether the subject property is correctly assessed at $1,790,000, the Board finds that the Complainant did not provide sufficient evidence with respect to sales, assessments or any other matter to establish that the assessment is incorrect. The onus of proving the incorrectness of an assessment is on the Complainant. The market valuation prepared by Lear Real Estate Ltd. did not provide sufficient evidence to prove the incorrectness off(sic) the assessment.

[31]The Board accepts the Respondent's position that each year's assessment is independent of previous assessments and the mere fact of a large increase is not sufficient information to draw the conclusion that an assessment is too high. Assessments are not based on previous year's assessments. [32] The amount to repair the deck is not a factor in determining the assessed value of the subject property as decks are not included by the City in assessing the value of a property. The balance of the repair work described by the Complainant appears to be consistent with normal deterioration for a structure of this age.

There was no detailed information provided by the Complainant other than the letter from Hoiland Custom Renovations dated April 12, 2014.

Further there was no detailed information to show that the repairs required were not consistent with general maintenance. [33] The Board notes that the Respondent was unable to carry out a detailed inspection of the property due to the Complainant being unavailable. [34] Due to the dissimilarity and location of the properties used by the Respondent as sales comparables the Board placed no weight on these as justification of the assessed value of the subject property. [35] The Equity comparables provided by the City were lacking in sufficient detail as to allow the Board to place much weight on these comparables. [36] As the Complainant had not provided sufficient evidence to establish that the assessment is incorrect the failure by the Respondent to provide better sale and equity comparables on which the Board could rely does not factor into the decision of this Board. [Emphasis added] APPENDIX B: EXTRACTS FROM THE MUNICIPAL GOVERNMENT ACT, RSA 2000 c.

M-26 Duties of assessors 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.

(3) An assessor appointed by a municipality must, in accordance with the regulations, provide the Minister with information that the Minister requires about property in that municipality. . . . Complaints 460(1) A person wishing to make a complaint about any assessment or tax must do so in accordance with this section.

(2) A complaint must be in the form prescribed in the regulations and must be accompanied with the fee set by the council under section 481(1), if any.

(3) A complaint may be made only by an assessed person or a taxpayer.

(4) A complaint may relate to any assessed property or business.

(5) A complaint may be about any of the following matters, as shown on an assessment or tax notice: (

a) the description of a property or business; (

b) the name and mailing address of an assessed person or taxpayer; (

c) an assessment; (

d) an assessment class; (

e) an assessment sub - class; (

f) the type of property; (

g) the type of improvement; (

h) school support; (

i) whether the property is assessable; (

j) whether the property or business is exempt from taxation under

Part 10.

(6) There is no right to make a complaint about any tax rate.

(7) A complainant must (

a) indicate what information shown on an assessment notice or tax notice is incorrect, (

b) explain in what respect that information is incorrect, (

c) indicate what the correct information is, and (

d) identify the requested assessed value, if the complaint relates to an assessment.

(8) A complaint about a local improvement tax must be made within one year after it is first imposed.

(8.1) Despite subsection (8), where a local improvement tax rate has been revised under section 403(3), a complaint may be made about the revised local improvement tax whether or not a complaint was made about the tax within the year after it was first imposed.

(8.2) A complaint under subsection (8.1) must be made within one year after the local improvement tax rate is revised.

(9) Repealed 1995 c24 s71 .

(10) A complaint must include the mailing address of the complainant if the mailing address of the complainant is different from the address shown on the assessment notice or tax notice.

(11) An assessment review board has no jurisdiction to deal with a complaint about linear property or an amount set by the Minister under

Part 9 as the equalized assessment for a municipality. Address to which a complaint is sent 461(1) A complaint must be filed with the designated officer at the address shown on the assessment or tax notice, not later than the date shown on that notice.

(2) On receiving a complaint, the designated officer referred to in

section 455 must set a date, time and location for a hearing before an assessment review board in accordance with the regulations. . . . Proceedings before assessment review board 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.

(2) Assessment review boards may require any person giving evidence before them to do so under oath.

(3) Members of assessment review boards are commissioners for oaths while acting in their official capacities. Notice to attend or produce 465(1) When, in the opinion of an assessment review board, (

a) the attendance of a person is required, or

(

b) the production of a document or thing is required, the assessment review board may cause to be served on a person a notice to attend or a notice to attend and produce a document or thing.

(2) If a person fails or refuses to comply with a notice served under subsection (1), the assessment review board may apply to the Court of Queen’s Bench and the Court may issue a warrant requiring the attendance of the person or the attendance of the person to produce a document or thing. . . . Decisions of assessment review board 467(1) An assessment review board may, with respect to any matter referred to in section 460(5), make a change to an assessment roll or tax roll or decide that no change is required.

(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).

(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.

(4) An assessment review board must not alter any assessment of farm land, machinery and equipment or railway property that has been prepared correctly in accordance with the regulations. Assessment review board decisions 468(1) Subject to the regulations, an assessment review board must, in writing, render a decision and provide reasons, including any dissenting reasons, (

a) within 30 days from the last day of the hearing, or (

b) before the end of the taxation year to which the complaint that is the subject of the hearing applies, whichever is earlier.