Home Depot Holdings Inc v Edmonton (City), 2017 ABQB 447

Court of Queen’s Bench of Alberta Citation: Home Depot Holdings Inc v Edmonton (City), 2017 ABQB 447 Date: 20170719 Docket: 1503 15388 Registry: Edmonton Between: Home Depot Holdings Inc. and 2118717 Ontario Ltd. Applicants/Plaintiffs - and - The City of Edmonton and Edmonton Composite Assessment Review Board Respondents/Defendants _______________________________________________________ Reasons for Judgment of the Honourable Mr.

Justice Donald Lee _______________________________________________________ [ 1 ] The within application relates to a 2015 decision (the “Board Decision”) of the Respondent, the Edmonton Composite Assessment Review Board (the “Board”) relating to two preliminary issues which arose in six assessment complaints. [ 2 ] Before the Board, the Home Depot, Home Depot Holdings Inc. (“Home Depot”) argued that certain evidence adduced by the Respondent, the City of Edmonton (the “City”) could not be heard by the Board, relying on a legislative provision which prohibits the Board from hearing evidence which a municipality ought to have disclosed in response to an information request under

section 299 of the Municipal Government Act, but did not disclose.

[ 3 ] Secondly with respect to the complaint for a property of which Home Depot was the lessee rather than the owner, the Board held that Home Depot did not have standing to make a

section 299 request. This ground of the application was abandoned at the beginning of the hearing before me by counsel for the applicant, Home Depot. [ 4 ] For the other five complaints, the Board held that while Home Depot had standing to make a

section 299 request, the impugned evidence was not information which a municipality was required to disclose in response to a

section 299 request, thus, in all five of the complaints, there had been no failure on the City’s part to provide information which it was required to provide in its

section 299 response. The Board concluded that it was able to hear the impugned evidence in all five complaints. [ 5 ] Home Depot now seeks leave pursuant to s 470 of the Municipal Government Act RSA 2000 c M-26 (“MGA”) which requires that this court find a question of law or jurisdiction of sufficient importance to merit an appeal with respect to two questions, namely: a. Did the Board correctly interpret the “disclosure” requirements contained in

section 299 of the MGA ? b. Did the Board make an error of law by failing to follow the rules of procedural fairness and to act in an impartial manner, namely, did they show bias towards Home Depot? Relevant Statutory Provisions for Leave [ 6 ] This application is brought pursuant to

section 470 of the MGA , which provides that a judge may grant leave to appeal, if the judge is of the opinion that the appeal involves: a.

A question of law or jurisdiction; b. of sufficient importance to merit an appeal; c. that has a reasonable chance of success. [ 7 ] The Board in its ruling with respect to disclosure stated: The Board finds that the Respondent adequately informed the Complainant that the Respondent considered the information regarding other properties sought in the cover letter was not producible and that it was not producible because it was information about other properties [paragraph 52 of the Decision]. [ 8 ] Section 284(1) of the MGA provides that: In this Part and Parts 10, 11 and 12 (a) “assessed person” means a person who is named on an assessment roll in accordance with

section 304; (b) “assessed property” means property in respect of which an assessment has been prepared or adopted. [ 9 ]

Section 299 of the MGA provides that: An assessed person may ask the municipality, in the manner required by the municipality, to let the assessed person see or receive sufficient Information to show how the assessor prepared the assessment of that person’s property [ 10 ]

Section 300 of the MGA provides that:

(1) An assessed person may ask the municipality, in the manner required by the municipality, to let the assessed person see or receive a

summary of the assessment of any assessed property in the municipality.

(1.1) For the purposes of subsection (1), a

summary of an assessment must include the following Information that the assessor has in the assessor’s possession or under the assessor’s control: (

a) a description of the parcel of land and any improvements, to identify the type and use of the property; (

b) the size of the parcel of land; (

c) the age and size or measurement of any improvements; (

d) the key factors, components and variables of the valuation model applied in preparing the assessment of the property; (

e) any other information prescribed or otherwise described in the regulations.

(2) The municipality must, in accordance with the regulations, comply with a request under subsection (1) if it is satisfied that necessary confidentiality will not be breached. [ 11 ]

Section 301 of the MGA provides that: A municipality may provide information in its possession about assessments if it is satisfied that necessary confidentiality will not be breached. [ 12 ]

Section 301.1 of the MGA provides that:

Sections 299 to 301 prevail despite the Freedom of Information and Protection of Privacy Act. [13] Section 304(1)(

b) of the MGA provides that: The name of the person described in column 2 must be recorded on the assessment roll as the assessed person in respect of the assessedproperty described in column 1. Column 1 Column 2b) a parcel of land and theimprovements to it, unless otherwisedealt with in this subsection; the owner of the parcel of land; [14] Section 9(4) of Matters Relating to Assessment Complaints Regulation, AR 310/2009 provides that: A composite assessment review board must not hear any evidence from a municipality relating to information that was requested by acomplainant under

section 299 or 300 of the Act but was not provided to the complainant. [15] Section 460(3) of the MGA states that:

(3) A complaint may be made only by an assessed person or a taxpayer. Issues [16] Should leave to appeal be granted on the following questions: a. Did the Board correctly interpret the disclosure requirements contained in

section 299 of the MGA? b. Did the Board fail to follow the rules of procedural fairness and act in an impartial manner? Analysis 1.

Does the Application Involve Questions of Law orJurisdiction? [17] The Supreme Court of Canada provided guidance in defining questions of law, fact, and mixed law and fact in Canada(Director of Investigation and Research) v Southam Inc, (SCC), [1997] 1 SCR 748, paragraph 35 (“Southam”): Briefly stated, questions of law are about what the correct legal test is; questions of fact are questions about what actually took placebetween the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests. [18] In the context of the MGA and the Board, in Edmonton (City) v Edmonton (Composite Assessment Review Board), 2012ABQB 171, paragraph 11(d), this Court articulated the test as follows: The principles governing the distinctions between a question of law and one of mixed fact and law are as described in Alberta (Workers’Compensation Board) v.

Appeals Commission, 2005 ABCA 276 paras 15 to 22: 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 oflaw. 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 aquestion 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 anerror of law. 2.

Did the Board Err by Incorrectly Interpreting theDisclosure of Information Requirements contained in Section299 of the MGA [19] Home Depot submits that the question of “did the Board correctly interpret the disclosure requirements contained in section299 of the MGA?” is a question of law. The City and the Board dispute the question as formulated by Home Depot and further submitthat it is not a question of law. [20] Questions about what the correct legal test is are questions of law. Questions about whether the facts satisfy the legal test arequestions of mixed law and fact.

I conclude that the question raised by Home Depot is not a question of law about whether the Board

interpreted the correct legal tests as set out in the MGA . The real issue raised by Home Depot is properly characterized as a question of mixed law and fact because it questions whether the facts satisfy the legal tests. [ 21 ] The question before the Board, and now this Court, is whether the City evidence sought to be excluded by Home Depot Holdings was evidence that the City was required to provide to Home Depot under

section 299 of the MGA .

The question before this Court involves an application of the legislation to the facts: (Edmonton (City) v Edmonton Composite Assessment Review Board , 2012 ABQB 154 and Sant Nirankari Mission of Canada Inc v Edmonton (City) , 2016 ABQB 699 . [ 22 ] Prior court decisions demonstrate that the question before this Court is a question of mixed law and fact, For example, in Edmonton (City) v Edmonton Composite Assessment Review Board , the Court identified a question of mixed law and fact: Review of the CARE decision clearly indicates the tribunal was conscious of its obligation to reject defective complaints.

The decision notes that it must review each complaint to determine whether the complaint has met the requirements of MGA, s. 460(7) : June 3 reasons at pp. 7-8. In other words the CARB has identified the correct test. ... This decision-making process is, necessarily, an analysis of mixed law and fact. The tribunal examines the complaints and concludes that these specific complaints meet the criteria for the assessment appeal process.

Any court that reviews the CARE’s conclusion will also have to follow the same process and examine whether these particular complaints (facts) meet the legislative scheme and criteria (law). [ 23 ] Further, in Sant Nirankari Mission of Canada Inc v Edmonton , the Board’s determination as to whether the use of a property met the requirements of Section 362(1) (

k) of the MGA was held to be a question of mixed law and fact. The Court stated that while the

interpretation of section 362(1)(

k) is an issue of law, ‘the determination of whether a particular property meets” the requirements of section 362(1)(

k) is a question of mixed law and fact. [ 24 ] I conclude that leave should be denied as the question of whether Home Depot Holdings is entitled to request information pursuant to

Section 299 of the MGA , as it is not a question of law but rather it is a question of mixed law and fact. 3. The Bias Issue [ 25 ] Generally speaking “questions of procedural fairness are questions of law, thereby satisfying the first part of the test under

Section 470 of the MGA . [ 26 ] The second part of the

Section 470 test, the question of whether the alleged Board failure to follow the rules of procedural fairness or acted in an impartial manner, in this case is of sufficient importance to merit an appeal in my opinion. [ 27 ] However “Is there a reasonable chance of success” as required by the third part of

Section 470 of the MGA ? [ 28 ] The Supreme Court of Canada in R v R D S , [1997] s SCR 484, paragraph 31 (“ RDS ”), confirmed that the grounds for establishing a reasonable apprehension of bias must be substantial: . . . the apprehension of bias must be a reasonable one, held by reasonable and right-mined persons, applying themselves to the question and obtaining thereon the required information.... That test is “what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude.

Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously. would not decide fairly.” The grounds for this apprehension must, however, be substantial and I ... refus[e] to accept the suggestion that the test be related to the “very sensitive or scrupulous conscience”. [ 29 ] The Supreme Court of Canada in RDS (paragraph 33) also confirmed that a strong presumption of impartiality applies to decision makers.

Further, with regard to the reasonable person, the Supreme Court of Canada stated at paragraph 36: The presence or absence of an apprehension of bias is evaluated through the eyes of the reasonable, informed, practical and realistic person who considers the matter in some detail (Committee for Justice and Liberty, supra.) The person postulated is not a “very sensitive or scrupulous” person, but rather a right-minded person familiar with the circumstances of the case. [ 30 ] Home Depot submits that the tone and content of the Board’s written preliminary ruling “are capable of giving rise to an apprehension of bias” on four occasions. [ 31 ] In the Board’s Reasons it was considering what a production under s. 299 look like if it included the information from other properties used to determine typical rental rates in a mass appraisal.

Home Depot submits that the Board reached four improper conclusions based on no evidence. [ 32 ] First the Board stated that: This could expose the inner workings of the model [ 33 ] Home Depot submits that there was no evidence presented suggesting that including information from other properties would expose the inner workings of the model. [ 34 ] Second, the Board stated that:

The release of sensitive information about other properties could be significant making it exponentially difficult to control the use of that information once it has been released, even under seal or undertaking . [ 35 ] Home Depot submits that this conclusion was reached without any evidence suggesting that the information about the other properties was of a sensitive nature or that it would be hard to control. [ 36 ] Thirdly, the Board stated that: A new layer of bureaucracy may be created to generate, protect, monitor, investigate complaints and enforce the protection of sensitive information which the Respondent has a duty to protect [ 37 ] Home Depot submits that there was no evidence suggesting that a new layer of bureaucracy would be required to protect this information, and further, that the Board found that Edmonton has a “duty” to protect information.

It is submitted that neither was proven at the hearing of this matter and neither forms part of the legislation. [ 38 ] Finally, the Board stated that: The Board concluded that the information relating to other properties is useful to gain a competitive edge; to attack the assessment model used to calculate the typical rental rate; and to save on the leg work required to find comparable properties to establish market value [ 39 ] Home Depot submits that this statement suggests that the taxpayer’s Request for Information to determine rental rates had an ulterior motive of trying to cut corners and gain a competitive advantage.

It is submitted that there was no evidence of male fides , and that it was incorrect for the Board to comment on the intentions of the taxpayer in the absence of evidence. [ 40 ] Home Depot submits that it raised concerns regarding the reliability of the date disclosed by the City, and it presented a chart of comparables used by the City in an earlier hearing for a different Home Depot located on Currents Drive. The very same five properties were used in the Currents Drive and the present hearing, but the data in the charts differs.

The Board brushed aside these concerns and in the absence of any evidence stated: the most reasonable explanation for the difference in the data in the Currents drive chart is a typographical error [ 41 ] It is submitted that throughout the decision the Board made numerous comments and conclusions not based on the evidence before it and alleged improper intentions on the taxpayer, and that these inappropriate comments by the Board give rise to an apprehension of bias. [ 42 ] I conclude however that nothing in the Board’s reasons in these four areas cited satisfy the test for reasonable apprehension of bias. [ 43 ] I conclude that the reasons demonstrate that the Board considered the meaning of specific sections of the relevant legislation as well as their context.

The reasons also show that the Board considered a number of other considerations. The Board reasonably considered the potential effect of the City’s production of actual lease information from different properties on complainant’s, other assessed persons, and the municipality.

The Board also considered the uses to which actual lease information about other properties could be put. [ 44 ] Home Depot obviously disagreed with the Board’s conclusions and reasons, but the Board did not ascribe any specific conduct to the Home Depot or otherwise link any of its comments to the Home Depot specifically in a disagreeable manner, procedurally or otherwise. [ 45 ] As such, the high bar with respect to establishing bias has not been met by Home Depot I its present application.

Conclusion [ 46 ] Home Depot is denied leave to appeal with respect to both questions it submits to the court in its application namely: a. Did the Board correctly interpret the disclosure requirements contained in

section 299 of the MGA ? b. Did the Board make an error of law by failing to follow the rules of procedural fairness and to act in an impartial manner, namely, did they show bias towards Home Depot? [ 47 ] With respect to whether the Board correctly interpreted the disclosure requirements contained in

section 299 of the MGA , I conclude that it is not a question of law as required by

section 470 of the MGA, but rather it is a question of mixed fact and law. [ 48 ] With respect to whether the Board made an error of law by failing to follow the rules of procedural fairness and to act in an impartial manner, namely, did they show bias towards Home Depot, I find that there was no bias demonstrated by the Board. Therefore there is no reasonable chance of success as required by

section 470 of the MGA with respect to bias. [ 49 ] Home Depot’s application is accordingly dismissed in its entirety. Heard on the 13 th day of July, 2017. Dated at the City of Edmonton, Alberta this 19 th day of July, 2017.

Donald Lee J.C.Q.B.A. Appearances: Susan E.A. Trylinski, Barrister and Solicitor Neil Barss, Student-at-Law for the Appellants/Plaintiffs Tanya Boutin City of Edmonton, Law Branch for the Respondent City of Edmonton Kate Hurlburt, Q.C. Edmonton Composite Assessment Review Board for the Respondent Edmonton Composite Assessment Review Board