Jaroc Holdings Ltd v Calgary (City), 2018 ABQB 969

Court of Queen’s Bench of Alberta Citation: Jaroc Holdings Ltd v Calgary (City), 2018 ABQB 969 Date: 20181127 Docket: 1701 13035 Registry: Calgary Between: Jaroc Holdings Ltd., Copperfield Corner Inc., Hanson Ranch Plaza Inc., First Canadian Properties Corporation, Ranchlands GP Ltd. and MacEwan GP Ltd., As Represented by MNP LLP Applicants - and - The City of Calgary and The Assessment Review Board for the City of Calgary Respondents Corrected judgment: A corrigendum was issued on December 3, 2018; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice S.L.

Hunt McDonald _______________________________________________________ [ 1 ] The Applicants apply for judicial review pursuant to s 470 of the Municipal Government Act from five decisions of The Calgary Assessment Review Board (the “CARB”); being CARB 114612P-2017, CARB 11458P-2017, CARB 1149236P-2017 and CARB 119338P-2017, all dated August 9 th , 2017, and CARB 11454OP-2017 dated August 17, 2017 (the “Decisions”). The Applicants

applied for an increase in capitalization rate and vacancy rate. The issues were argued and the Board found there was insufficient evidence to show that the 2017 assessments were incorrect.

The CARB found that the Applicants did not meet the ultimate burden of proof, on a balance of probabilities, to prove its case that a reduced assessment of the five properties was merited. [ 2 ] The focus of this application is on a preliminary procedural ruling made by the CARB which applies to all five decisions. [ 3 ] Pursuant to the ruling, the CARB accepted the first 201 pages of a global evidence package disclosed by the Applicants’ agent, but excluded the subsequent 1,392 pages of evidence due to the Applicants’ failure to provide a

summary. The Applicants submit they intended to rely on the excluded evidence throughout the hearing of the five matters. They say that the excluded evidence consisted of back up documentation to support their agents’ arguments on the valuation of the properties in issue. [ 4 ] The City objected to pages 202 to 1593 of the Applicant’s global evidence package on the basis that it was excessive and difficult to understand considering that there was no meaningful

summary provided, including information to assist them in interpreting the included data so they could respond to or rebut the evidence. [ 5 ] The CARB excluded the evidence on the basis that the data contained in such pages did not include or constitute a “summary” of the testimonial evidence in sufficient detail to allow the respondent to respond or rebut the evidence as required by s 8(1) of the Matters Relating to Assessments Complaints Regulation, Alta Reg 310/2009 (“ MRAC ”). The lack of context or a

summary for the data placed the Respondent City of Calgary (the “City”) at a disadvantage to provide an accurate and coherent response. [ 6 ] After the CARB excluded the 1392 pages at the hearing, the Applicants’ agent questioned the CARB on how they determine what is

summary and what criteria CARB uses in that determination. The chair of the board responded by saying “well, I think I’ve rendered our decision.” The Applicants take issue with the fact that no further guidance of what a

summary is was provided by the CARB in its written decision. [ 7 ] In giving its decision on the merits, the CARB dismissed the complaints of the Applicants indicating the evidence provided by them was insufficient, and that they did not meet the evidentiary burden of proof. [ 8 ] The Applicants allege that the CARB imposed a “relevance” test without even hearing or understanding the evidence.

It is the Applicants’ position that the vast majority of the excluded evidence was information whose source was the City of Calgary itself, produced in the form of Assessment Information Packages (“AIP”), tables from 2014 to 2017 as well as third party reports. [ 9 ] The Applicants also submit that during the course of the hearing, the CARB questioned the Applicants’ agent on the information contained in the agent’s submissions as to where the information came from, to which the agent could not speak because it was found in the excluded evidence. [ 10 ] It is the Applicants’ position that the CARB’s handling of the matter amounts to errors of law or mixed fact and law, in that there was a failure to articulate an appropriate legal test for the reception of evidence.

Further, they allege there was a breach of the Applicants’ legitimate expectations that their evidentiary filings met the standard required by s 8 of MRAC based on their past disclosure practice before the CARB. [ 11 ] Accordingly, the Applicants request the decisions be quashed and remitted to the CARB with direction from this Court respecting an appropriate legal test to apply to s 8 of MRAC . The Applicants also allege that a breach of fairness renders the decision void. Legislative Provisions [ 12 ] As noted, MRAC governs the procedures for property assessment complaints before the CARB.

Each party to a hearing is required to provide documentary evidence, a

summary of testimonial evidence, and written argument in sufficient detail to allow the other parties to respond, s 8. The CARB cannot hear evidence that has not been disclosed in accordance with s 8, s 9(2): Disclosure of evidence 8(1) In this section, “complainant” includes an assessed person who is affected by a complaint who wishes to be heard at the hearing.

(2) If a complaint is to be heard by a composite assessment review board, the following rules apply with respect to the disclosure of evidence: (

a) the complainant must, at least 42 days before the hearing date, (

i) disclose to the respondent and the composite assessment review board the documentary evidence, a

summary of the testimonial evidence, including a signed witness report for each witness, and any written argument that the complainant intends to present at the hearing in sufficient detail to allow the respondent to respond to or rebut the evidence at the hearing, and (ii) provide to the respondent and the composite assessment review board an estimate of the amount of time necessary to present the complainant’s evidence; (

b) the respondent must, at least 14 days before the hearing date, (

i) disclose to the complainant and the composite assessment review board the documentary evidence, a

summary of the testimonial evidence, including a signed witness report for each witness, and any written argument that the respondent intends to present at the hearing in sufficient detail to allow the complainant to respond to or rebut the evidence at the hearing, and

(ii) provide to the complainant and the composite assessment review board an estimate of the amount of time necessary to present therespondent’s evidence; (

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. Failure to disclose 9(1) A composite assessment review board must not hear any matter in support of an issue that is not identified on the complaint form.

(2) A composite assessment review board must not hear any evidence that has not been disclosed in accordance with

section 8. ... Issues 1) Did the CARB err in its

interpretation of

section 8 of MRAC? 2) Did the CARB err by arbitrarily dismissing evidence on the basis of “summary” or “relevance”? 3) Did the CARB deny the Applicants procedural fairness by: i. Imposing a standard on the Applicants without outlining what that standard was. Specifically, requiring theApplicants to provide a “summary” without setting out what a “summary” was; ii. Failing to consider the legitimate expectations of the Applicants in determining if what they provided to theCity contained a proper “summary”; iii.

Failing to provide adequate reasons or an appropriate legal test for the exclusion of the Applicants’evidence.

Standard of Review [13] When an issue under review involves an administrative body interpreting its own statute or a statute closely connected to itsfunction, the presumptive standard of review is reasonableness: Edmonton v Capilano Shopping Centres, 2016 SCC 47, [2016] 2 SCR293. [14] Under the reasonableness standard a court will not interfere if a decision falls within a range of possible, acceptable outcomes.In Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 at para 47, reasonableness was described in the following terms: 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. [15] Issues of procedural fairness and natural justice attract a standard of review of correctness. The Court will inquire into whetherthe tribunal process conformed to expected standards in the context of each particular case: Calgary (City) v Renfrew Chrysler Inc, 2017ABQB 197, at para 20 [Renfrew Chrysler]. The factors which often guide this exercise were set out in Baker v Canada (Minister ofCitizenship and Immigration), (SCC), [1999] 2 SCR 817: 1.

The nature of the decision being made and the process followed in making it; 2. The nature of the statutory scheme and the terms under which the tribunal operates; 3. The importance of the decision to individuals affected; 4. The legitimate expectations of the person challenging the decision; 5. The choices of procedure made by the tribunal. [16] Unlike the reasonableness standard, the correctness standard gives no deference to the decision maker: Federated Co-operatives Limited v Wheatland County and Wheatland County Composite Assessment Review Board (8 December 2014), Calgary1301-08506 (Alta QB) at p 17.

Analysis A. Did the CARB err in its

interpretation of

section 8 of MRAC? [17] The words in a statute are to be interpreted in their entire context and in their grammatical and ordinary sense harmoniouslywith the scheme of the legislation, the object of the legislation, and the intention of the legislature: Rizzo & Rizzo Shoes Ltd (Re), (SCC), [1998] 1 SCR 27. This is the same approach that is used to interpret all legislation, including taxpayer legislation. Inan exceptional case where this approach does not lead to finding the clear meaning in a provision there is a residual presumption thatambiguities are resolved in favour of the taxpayer: Cwalina Estate v Parkland (County), 2013 ABCA 343, at para 20. [18]

Section 8 of MRAC has been interpreted and commented on previously by our Court. [19] In Renfrew Chrysler Justice Neufeld discussed the procedure involved for complaints against municipal tax assessments. Theapplicant is required to file a complaint within a specific time following receipt of the assessment. The applicant must set out the groundsfor challenging the assessment. Next, the applicant must file written material in support of the complaint. This is where s 8(2)(

a) fits in,requiring the applicant to disclose, at least 42 days before the hearing, “the documentary evidence, a

summary of testimonial evidenceincluding a signed witness report for each witness, and any written argument that the complainant intends to present at the hearing insufficient detail to allow the respondent to respond to or rebus the evidence at the hearing”. The respondent then in turn provides itsdisclosure at least 14 days before the hearing.

Finally, the applicant must disclose its rebuttal evidence and argument at least 7 daysbefore the hearing. [20] Justice Neufeld remarked that the intention of this procedure in MRAC “is to ensure that the evidence and arguments to berelied on and advanced by either side, is disclosed in advance.” He notes that s 9(2) “entrenches and goes one step further and prohibits aboard from hearing any evidence that has not been disclosed in accordance with s 8.” [21] Sections 8 and 9 are therefore meant to ensure there is procedural fairness in tax assessment review hearings.

The sectionshave been described as defining basic procedural fairness rules so that “parties are aware of the evidence to meet and are not unfairlysurprised:” Metrowest Developments Ltd v Calgary (Assessment Review Board), 2014 ABQB 450 at para 20.

They are a codification ofthe audi alteram partem principle, meaning that a person must be informed of the case being made against him or her and be given anopportunity to answer it before the person or agency that will make the decision: Wheaton Investments Ltd v The City of Edmonton(13 April 2010), Edmonton 1203-00607 (Alta QB) at pgs 5-6. [22] With that context in mind, it is now possible to look at how the Board interpreted s 8 in this case and whether thatinterpretation was reasonable. [23] The five decisions under appeal were brought to CARB by MNP as the tax agent for the properties.

While there wereindividual issues for each property, MNP also had “global issues” which affected the assessments for all five properties. MNP prepared aglobal evidence package for the global issues and provided it to the City in compliance with the timelines in MRAC. MNP also provideda site specific package for each of the five properties. The global evidence package was 1,593 pages.

MNP had followed this practicepreviously in assessment complaints before the CARB. [24] At the commencement of the first hearing, the City took issue with the global evidence package and whether it contained asummary sufficient for the City to understand what the complainant was arguing. The City made the following argument at the hearing: [City]: So under Section 8(2) of MRAC, when the complainant discloses evidence within that Subsection (a)(1) is to disclose a

summaryof testimonial evidence, to outline it. In terms of the cap rate appendix for all these files, the complainant submitted 1,594 pages ofevidence. There is no

summary of testimonial evidence that I can find, unless the complainant can point it out to us now, for the City togo on in terms of establishing what the complainant’s argument is. ... [City]: And I guess from the City’s position, we’re asking you to not even read in their evidence based on Section 9(2) of MRAC. Itstates if evidence has not been disclosed as per 8(2), that it’s not to be heard by the Board. So we’re asking that it actually doesn’t evenget read in and it’s not on the record. ... [The Chair]: And is this disclosed – this package disclosed to you? [City]: It was disclosed, but again, there’s no

summary of testimonial evidence, so the City is unsure as to what the argument that wasmade by the complainant. And we have responded, but, again, I’m responding to my best guess, essentially, of what was submitted bythe complainant. ... [City]: ... The province writes the legislation in order to ensure that there’s fairness for both the taxpayer and the City within the hearingprocess. With that, it’s done to ensure that there’s fairness and equity.

Now, in order to not submit what your argument is in writing togive the City the opportunity to respond is not correct, and that is placing the City at a procedural disadvantage. [25] After hearing submissions from both sides, the CARB ruled that only pages 1-201 of the global evidence package wasallowed in as evidence and excluded pages 202-1,593. The Board provided oral reasons during the hearing and written reasons in its fiveDecisions relating to its ruling (which were identical).

[ 26 ] The pertinent part of the Board’s oral reasons follows: And I just want to mention that the Board is at somewhat of a disadvantage in not being able to have seen any of this information. That’s just typical of how things go. We don’t get a chance to review any of this stuff. So when it does come in, we really appreciate the ability to have summaries and be able to quickly access information that is provided to us because we hear it firsthand when you present it to us.

So just a little story that I’ve been – in the past, some of the work I’ve done is related to information architecture, and I always rely on a little story that I understand that takes me from understanding chaos to wisdom through the preparation of information in effective ways. What information tells you – if information doesn’t tell you what you need to know, then you need to organize it in a way that is appropriate.

And so when you have – I mean, you start off with the lower end of the scale where you have chaos, and then if you start storing that information into columns or, you know, grouping them into different elements, you get – you get sort of data out of that chaos, and then the data – in order for data to become meaningful, to have data become information, it has to be set inside some sort of context, and so what we – we looked at today is what the context for the data that was presented to us, and can we find information within the data that was presented within 1,500 pages.

And so we quickly looked at the issues that were before us in this particular file ... in this file it’s vacancy rate and cap rate. And we – we took into account what the respondent mentioned to us about summaries and MRAC 8 .1. And we found that specifically – and this is not a new issue to the Board – that’s been pointed out to us on various CARB decisions – that the global evidence package appears to be at first blush principally constituted with the respondent’s AIP information included in here. And we couldn’t quite figure out what the relevance of that information was.

However, we looked at the first 201 pages, and the first 201 pages within this package relate specifically to the – to the complaint’s study of vacancy and cap rate argument, and the comparables that are being presented ... by the complainant. And there is relevant – we felt there’s relevant information in here. At least it was information that was organized according to the various comparables relating to the cap rate and vacancy study, and those were the two issues within this particular – this particular file.

So the Board has decided that we would allow pages 1 to 201... and to exclude the remainder... [ 27 ] After the Board gave its oral ruling, the agent for the Applicants asked the Board a few times to elaborate on what an adequate “summary” would be as MNP was worried about submitting evidence in a number of its upcoming cases. The Board explained that its ruling involved the application of the legislation to the matter before it, but stated that it could not speak to what a

summary means generally. [ 28 ] After the hearing was completed, the Board provided written reasons for its ruling, at paras 1-7: The Respondent objected to the lack of a testimonial

summary document by the Complainant. The Respondent argued that the 1593 pages which was

part 1 of the Global Evidence Package was excessive and difficult to understand considering that there was no meaningful

summary or information to assist the Respondent in interpreting the data included in the 1593 pages. ... The Board accepted that large amounts of the Complainant’s data, that has not been summarized, places the Respondent at a disadvantage to provide an accurate and coherent response. This also contributes to a lack of clarity regarding the issues that are to be raised in the hearing. The Board found that pages 1-210 in the impugned document did provide some

summary data for the comparables provided by the Complainant. ... The Board found that pages 202-1593 did not contain summaries or context to support the testimony or arguments. The Board found it difficult to see the relevance of this data as

summary. ... The Board finds that all parties would have benefitted from a

summary document, indexed, and set into a context that transformed the data into information and prepared in a way to support the Complainant’s arguments for an increase in the Capitalization Rate (Cap Rate) and Vacancy Rate. [ 29 ] I find that the Board’s

interpretation and application of

section 8 of MCAP was reasonable in this case. Although the beginning of s 8(2)(

a) asks for only a “summary of testimonial evidence” the rest of the language in s 8(2)(

a) makes it clear that all of the disclosure being provided needs to be presented “in sufficient detail to allow the respondent to respond to or rebut the evidence at the hearing.” The focus on the word “summary” by all parties at the hearing may have been unfortunate. However, as noted, when the complete sentence in s 8(2)(a)(

i) is read, it is clear the

section requires documentary information to be presented in a coherent way such that the respondent can understand why the evidence has been submitted and respond to it. [ 30 ] This was also the finding of a Board in a different CARB decision which considered the requirement for a “summary of testimonial evidence” in s 8(2). In CARB 119939P-2017, the Board held that there is no requirement to summarize all evidence, however it also noted at para 11 that “[l]eaving the

summary for only testimonial evidence does not mean that the documentary evidence can be organized in such a way to obscure the issues and how they will be dealt with.” The Board noted “the disclosure must still allow for a relatively easy determination of what the issues will be and how they will be argued.” [ 31 ] The City’s issue in this case was that it did not understand how the large global evidence package related to the complainant’s argument and was left guessing at how to respond.

The City noted s 8 was meant to ensure procedural fairness and give the City the opportunity to respond appropriately, which it could not do in this case. The record shows that the City had advised the Applicant of the difficulties with the global evidence package before the hearing but received no meaningful reply. [ 32 ] The Board’s ruling was responsive to the issue as framed by the City. The Board reviewed the global evidence package and

found that there was context for the information presented in the first 200-some pages, but no context for the information that followed. Without some sort of organization of the “data”, it remained “data”, rather than information in support of the two issues being argued.

The City could not understand or respond to the information provided in the context of the Applicant’s argument. [ 33 ] Therefore, despite the somewhat confusing reliance on the word “summary” by all parties, including the Board in its reasons, I find that the Board properly interpreted s 8 as requiring the complainant to disclose its evidence and argument in advance of the hearing in such a way that the receiving party can know the case against it and respond. This is the correct

interpretation of s 8 in MRAC and is in accordance with other judicial

interpretations of the section. I also find the Board applied that

section appropriately. The Applicants needed to show how or why pages 202 onwards were relevant to their argument. They failed to do so in either their global evidence package or their site-specific package. The Board’s ruling therefore easily meets the standard of review of being reasonable. [ 34 ] The Applicants also argue that it was “unreasonable” that the Board failed to articulate an understandable test with respect to the language of s 8.

Although MNP had a valid concern as it was about to submit global evidence packages in other cases, there is no requirement for the Board, or for this Court, to set out a particular test. The test is already contained in s 8(2)(a)(i)’s wording itself –is the disclosure presented “in sufficient detail to allow the respondent to respond to or rebut the evidence at the hearing?” This requires the evidence to be presented in such a way that the party receiving it will know what argument is being made and how the evidence provided supports that argument.

What this will look like will depend on the facts of each case and there is no need to further refine the test. [ 35 ] I find that both the oral and written reasons by the Board articulated why the disclosure in this case was improper. Pages 201- 1593 left both the City and the Board unclear on how a large portion of the documentary evidence (the AIP information) was tied to the two issues raised by the Complainant.

It does not matter that the bulk of the information was from the City if there was no context provided tying that evidence to the argument. [ 36 ] Finally, I find the Board’s oral and written reasons did provide guidance on how the data needed to be organized in order to allow for a meaningful response from the City. The Board’s written reasons suggested that a

summary document that was indexed to the evidence would have been one way to present the data in context to the City and the Board. B. Did the CARB err by arbitrarily dismissing evidence on the basis of “summary” or “relevance”? [ 37 ] The Applicant has also argued that the CARB improperly relied on “relevance” as a reason for excluding evidence in the global evidence package. It points to more than one place in the Board’s reasons where the Board states the excluded pages were “not relevant” or that they could not figure out “what the relevance” of the AIP information was to the case.

Conversely, the CARB in allowing pages 1-201 remarked that “there’s relevant information in here.” [ 38 ] The Applicants argue that there is no requirement for relevance in s 8 of MRAC and that any such concerns should have been tied to weight rather than inadmissibility. It submits that the Board erred by excluding the evidence rather than allowing it to be presented and then deciding on any issues of prejudice or weight. [ 39 ] I find that this argument focuses again too much on the particular wording used by the Board in its reasons rather than focusing on the reasoning behind their decision.

The Board’s use of the word “relevance” follows closely after its comments that information needs to be presented effectively in order to be understood and be meaningful. The Board then determined that some portions of the evidence package were clearly relevant to the argument, where as other portions were not. These comments, when understood in context, were not applying a relevance test. The Board was analyzing whether there was sufficient detail in the evidence for the receiving party to respond to it. The Board excluded evidence when it could not find a

summary or other context for the data to make it meaningful such that the City could respond. [ 40 ] Further, although the Board could have allowed the evidence and decided later on weight or admissibility that may not have been procedurally fair to the City. The City is entitled to rely on ss 8 and 9 to exclude evidence that was not properly disclosed so that they are not surprised and unprepared at the hearing. C.

Did the CARB deny the Applicants procedural fairness? [ 41 ] The Applicants argue that they were denied procedural fairness in its handling of the disclosure matter. [ 42 ] The duty of procedural fairness is flexible in nature, and recognizes that in the administrative law context meaningful participation can occur in different ways in different situations: Baker at 843.

The duty exists to ensure that “administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision- maker”: Baker at 837. [ 43 ] Courts supervise tribunals such as the CARB to ensure that no person’s right to be heard is seriously prejudiced by an unfair procedure. However not all procedural errors will result in a tribunal’s decision being set aside.

There must be manifest unfairness or actual prejudice for a decision to be set aside, a minor procedural lapse will not suffice: Sara Blake, Administrative Law in Canada , 6 th ed. (Toronto: LexisNexis Canada, 2017) at 239-240; Seroya v Calgary (City) , 2017 ABQB 157 at para 65 . [ 44 ] The Applicants argue that the CARB breached its duty to be fair in three specific ways:

1. By imposing an impossible standard on the Applicants by requiring the Applicants to provide a “summary” without setting out what a “summary” is; 2. By failing to consider the legitimate expectations of the Applicants based on past practices that what they provided to the City contained a proper “summary”; 3. By failing to provide adequate reasons or set a clear legal standard for the exclusion of the Applicant’s evidence. [ 45 ] The Applicants’ first complaint, relating to there being an impossible standard to meet because the requirements for a “summary” were not explained, has already been dealt with above.

The requirements of s 8(2) are set out in the legislation and the Board’s role is to apply those requirements to the evidence in the case before it. That is all that the Board was required to do. The Board’s

interpretation of s 8(2) was reasonable and it provided guidance in both its oral and written reasons on the expectations for disclosure under that section. [ 46 ] The Applicants’ second complaint relates to the fact that they had provided similar global evidence packages in the past two to three years without issue.

They argue that it was unfair for the CARB to change its practice as they had a legitimate expectation that the global evidence package would be accepted in this case as well. [ 47 ] I do not find there was a breach of the Applicants’ legitimate expectations in this circumstance. [ 48 ] The Applicants have based their argument on the fact that the CARB accepted their global evidence packages in the past. The fact that their packages have been accepted previously does not set up a practice by the CARB of accepting such packages.

It appears that up until this hearing, the City had not challenged the global evidence packages as a preliminary issue at a hearing. There was no evidence that the CARB had ever explicitly considered whether such packages meet the requirements in s 8(2) before. [ 49 ] Even if the CARB had accepted a global evidence package in a prior decision, this Board was not required to accept the package based on that precedent.

Stare decisis does not apply to the Board and they are not required to follow another Board’s decision: Anthem Riverfront Holdings v Calgary (City) , 2017 ABQB 356 , at para 47 . [ 50 ] It is also unlikely that the global evidence packages and arguments in prior hearings were identical to the ones at this hearing. Section 8(2) requires an assessment of the disclosure in each particular case. [ 51 ] Finally, as noted by the City, it is not legitimate to expect that a party can file hundreds of pages of data without providing a

summary or any context for tying the data to their particular arguments, especially in light of the wording in s 8(2). The Board is required to follow the governing legislation in MRAC , which specifies disclosure obligations and prevents the Board from hearing any evidence which has not been disclosed accordingly: Canada Safeway Ltd v Calgary (City) , 2016 ABQB 200 , at paras 43 , 45. [ 52 ] It must also be remembered that the CARB did accept the first two hundred pages of the global evidence package as well as the site-specific package submitted by the Applicants.

This is not a case where a party was not permitted to submit evidence or argument. The Applicants were heard on the merits. Having reviewed the audio transcription of the Board’s hearing, as well as their written reasons, it is evident that the Applicants were able to argue their case despite the excluded evidence using the site-specific evidence package and the portion of the global evidence package that was admitted.

Although the Applicants were frustrated at a few junctures by not being able to point to the excluded evidence, I find that ultimately it was back up documentation and its exclusion did not affect the Board’s ultimate decision on the merits: Genesis Land Development Corp v Calgary (City) , 2014 ABQB 57 at para 34 . [ 53 ] The Board considered the Applicants cap rate study and vacancy study, but found that using the Applicants inputs would result in inferior property assessments.

It is clear in the following excerpt from the Board’s written decision that it considered the substantive arguments provided by the Applicants fully and did not base its decision on a lack of evidence from the Applicants, at paras 31 and 32: The Board notes that whereas the Complainant relied on nine sales in the determination of the requested Cap Rate, the Respondent relied on ten sales. Eight sales are common to both submissions.

The Complainant did not provide any test to illustrate that by applying the requested Cap Rate of 6.50% would provide for more superior results than by applying the assessed Cap Rate of 6.00%. The Board undertook such a test based on the evidence submitted by the Complainant. The test results are displayed in the following table. [Table Omitted] The Board finds the requested Capitalization Rate of 6.5% provides for inferior results in comparison to the results achieved with the assessed parameters and resultant assessed Capitalization Rate of 6.00%.

The argument fails. [ 54 ] There was therefore no actual prejudice to the Applicants in the exclusion of the evidence. [ 55 ] The Applicants third and final complaint is that the Board erred by failing to provide adequate reasons or a clear legal standard for excluding the evidence. This argument again focuses on their allegation that the CARB failed to provide sufficient reasons for how it was able to determine what amounted to a “summary” without defining what a “summary” was.

They submit that the CARB provided no logical basis for why the CARB excluded the evidence and provided no guidance for future taxpayers about how to meet the standard in s 8. [ 56 ] When a court reviews the reasons of a tribunal, it should ask whether the tribunal’s reasons adequately explained the bases of its decision in light of the evidence before it and the nature of its statutory task. Reasons do not have to be perfect. If the reasons allow

the reviewing court to understand why the tribunal made its decision and whether that decision is within the range of acceptable outcomes, then the court should not interfere with the outcome of the decision. In that sense, the adequacy of reasons alone is not a standalone ground for setting aside a decision: Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board) , 2011 SCC 62 , at paras14 to 18. [ 57 ] In this case, in addition to the guidance given by the Supreme Court on the review of reasons, there are also requirements for reasons set out in s 13 of MRAC .

According to that section, a decision of an assessment review board must include: 13(1) For the purposes of

section 468 of the Act, a decision of an assessment review board must include (

a) a brief

summary of the matters or issues contained on the complaint form, (

b) the board’s decision in respect of each matter or issue, (

c) the reasons for the decision, including any dissenting reasons, and (

d) any procedural or jurisdictional matters that arose during the hearing, and the board’s decision in respect of those matters. [ 58 ] As explained earlier, I do not find merit in the argument that the Board did not articulate the basis for its decision to exclude the evidence. The Board’s reasons explained why it made the decision to exclude the pages after reviewing the materials. It found that it agreed with the City that there was no context for the evidence or clear connection of the evidence to the two main issues at the hearing. Other than minor issues with the Board’s use of the word

summary, I found the oral and written reasons to be intelligible and justified based on the evidence before it. The Board articulated why it would accept the first 200 pages but not the following ones in the global evidence package [ 59 ] Therefore, I find that the Board met its obligations under s 13 of MRAC . It also met its duty of procedural fairness, which it owed to both the City and the Applicants, in its

interpretation and application of ss 8 and 9 of MRAC . Conclusion [ 60 ] To conclude, I find that the Board interpreted and applied the governing legislation reasonably in the case at hand. The Board’s oral and written reasons, when read fully and in context, clearly explain its rationale for excluding a portion of the global evidence package and was an acceptable outcome. The Board followed the procedures prescribed by the legislation in a fair manner and the exclusion of the evidence did not impact the Applicants substantively.

The application to quash the Decisions is therefore dismissed. [ 61 ] If the parties cannot agree on costs, they may seek to speak to the matter by contacting my administrative assistant to set up a time. Heard on the 1 st day of June, 2018. Dated at the City of Calgary, Alberta this 27 th day of November, 2018. S.L. Hunt McDonald J.C.Q.B.A. Appearances: Brian K. Dell for the Applicants Nathan Irving for the Respondent,The City of Calgary Shaun Fluker

for the Respondent, The Assessment Review Board for The City of Calgary _______________________________________________________ Corrigendum of the Memorandum of Decision of The Honourable Madam Justice S.L. Hunt McDonald _______________________________________________________ The Citation Number is 969 (not 970 as originally filed) and the date inserted above the docket number should read 20181127.