Altus Group Ltd v Edmonton Composite Assessment Review Board, 2021 ABQB 322

Court of Queen’s Bench of Alberta Citation: Altus Group Ltd v Edmonton Composite Assessment Review Board, 2021 ABQB 322 Date: 20210422 Docket: 1903 02633 Registry: Edmonton Between: Altus Group Ltd Applicant - and - Edmonton Composite Assessment Review Board and City of Edmonton Respondents _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice Bonnie L. Bokenfohr _______________________________________________________ I.

Overview [ 1 ] The Applicant, Altus Group Ltd. (Altus or the Applicant) seeks to judicially review 22 decisions of the Edmonton Composite Assessment Review Board (Review Board). Separate decisions were issued for each complaint however each decision considered the same issues, therefore the parties agreed that they may be heard together in this application.

[ 2 ] Altus argues that the Review Board’s decisions are unreasonable because: 1) The Review Board did not accept the actual sales price of properties as the best evidence of market value; 2) The Review Board concluded that certain comparable sales advanced by Altus were not reflective of market value; and 3) The Review Board’s decision to reduce the assessed value of 17 of the 22 properties was an arbitrary decision. [ 3 ] I dismiss Altus’ application.

I agree with the City that Altus is essentially rearguing the merits of the case and asking the Court to override the Review Board’s expertise and substitute a different decision. The Review Board’s decision that the actual sale price of the properties did not reflect the market value was reasonable on the evidence before the Board and supported by the legal framework. The decision of the Review Board to reject the sales comparables put forward by Altus is justifiable, intelligible, and transparent on the evidence before the Board.

Finally, before the Review Board, Altus did not argue that the City’s proposed reduction of the assessed value for 17 properties was arbitrary. I decline to consider the issue as it was not raised before the Review Board. II. Background [ 4 ] Altus is a tax agent representing the 22 complaining taxpayers in this case. The Review Board is a statutory tribunal established under s 454 of the Municipal Government Act , RSA 2000, c M-26 ( MGA ).

The City of Edmonton (the City) is the municipality and assessment authority that prepared the 2018 property tax assessments at issue before the Review Board. [ 5 ] On November 19-21, 2018, the Review Board heard challenges to 22 assessments of various low-rise multi-residential properties throughout the City. Altus, representing the taxpayers, used a “test case” before the Review Board with most of the evidence and argument carried forward to the other 21 matters. [ 6 ] The “test case” involved a multi-residential low-rise apartment in southwest Edmonton (Subject Property).

The Subject Property sold for $27,350,000 on June 9, 2017. On January 2, 2018, the City provided the Subject Property owner with an assessment, as at the July 1, 2017 valuation date, of $31,953,000. The Subject Property owner filed a complaint on the basis that the assessment was incorrect. [ 7 ] The City uses an income approach (the Income Approach) to determine the market value of multi-residential properties.

Altus and the City agree that the following description of the Income Approach is accurate: ...The approach considers the typical actions of buyers and sellers and the present value of a future income stream. The approach requires an assessor to calculate the typical rents that would be collected if the property was fully occupied, adjust that potential gross revenue to account for typical vacancy, then apply a Gross Income Multiplier (the GIM) to determine the market value. The GIM is a product of the factors that determine how much an investor will pay for that type of property at any given time.

It is typically determined with reference to comparable sales. [ 8 ] Generally, Altus argued that the GIM used by the City assessor to calculate the assessments was too high, which resulted in the properties being overvalued. [ 9 ] At the Review Board hearing, Altus argued that the Board should consider the sales of six specific comparable properties (identified by Altus) when calculating the most accurate GIM on the basis that the comparable properties are good indicators of market value. [ 10 ] In response, the City argued that only two of the six sales proposed are good indicators of market value.

Of the other four, the City argued that three of the sales are unreliable because they were part of a portfolio sale, and the fourth is unreliable because it was a non-arm’s length transaction that involved unusual consideration.

Besides the two valid sales referred to by Altus, the City asked the Review Board to consider four other sales that the City argued provide a good indication of market value. [ 11 ] The City also asked the Review Board to approve a downward adjustment to the GIM for 17 of the 22 properties. [ 12 ] By written decisions released December 14, 2018, the Review Board dismissed all 22 complaints. The Review Board largely agreed with the City’s submissions upholding the City’s assessments in five cases and accepting the City’s recommendation to reduce the assessments in 17 cases.

The assessment reductions were not as large as the reductions sought by Altus. [ 13 ] Separate decisions were issued for each complaint; however, because each decision considered the same issues, they may be heard together in this application. III. Standard of Review [ 14 ] In Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 ( Vavilov ), the Supreme Court of Canada re- examined its approach to judicial review of administrative decisions.

The Court noted that judicial review “functions to maintain the rule of law while giving effect to legislative intent.” The Court also affirmed “the need to develop and strengthen a culture of justification in administrative decision making.”: Vavilov at para 2 . [ 15 ] The parties, and this Court, agree that the Review Board decisions should be reviewed on a standard of reasonableness. [ 16 ] Under the reasonableness standard, administrative tribunal decisions undergo a robust review guided by the principle of judicial restraint and respect for the distinct role of administrative decision makers.

Courts should only intervene in administrative

matters when it is truly necessary to protect the “legality, rationality and fairness” of the administrative process: Vavilov at para 13 . [ 17 ] When written reasons must be provided by the administrative decision maker, as in this case pursuant to the MGA at s 468, the reviewing court first looks to those reasons. “A reviewing court must begin its inquiry into the reasonableness of a decision by examining the reasons provided with ‘respectful attention’ and seeking to understand the reasoning process followed by the decision maker to arrive at its conclusion.”: Vavilov at para 84 . [ 18 ] The reasons must intelligibly and clearly justify the decision to those affected by it: Vavilov at paras 86 and 136 . “While some outcomes may be so at odds with the legal and factual context that they could never be supported by intelligible and rational reasoning, an otherwise reasonable outcome also cannot stand if it was reached on an improper basis.”: Vavilov at para 86 . [ 19 ] Reasonableness is a single standard, however, “the particular context of a decision constrains what will be reasonable for an administrative decision maker to decide in a given case.”: Vavilov at para 89 . [ 20 ] Reasonable decisions should have internally coherent reasoning and be justified considering the legal and factual constraints on the decision: A reviewing court must develop an understanding of the decision maker’s reasoning process in order to determine whether the decision as a whole is reasonable.

To make this determination, the reviewing court asks whether the decision bears the hallmarks of reasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision: Dunsmuir , at paras 47 and 74; Catalyst at para 13. The burden is on the party challenging the decision to show that it is unreasonable.

Before a decision can be set aside on this basis, the reviewing court must be satisfied that there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency. Any alleged flaws or shortcomings must be more than merely superficial or peripheral to the merits of the decision. It would be improper for a reviewing court to overturn an administrative decision simply because its reasoning exhibits a minor misstep.

Instead, the court must be satisfied that any shortcomings or flaws relied on by the party challenging the decision are sufficiently central or significant to render the decision unreasonable. What makes a decision unreasonable? We find it conceptually useful here to consider two types of fundamental flaws. The first is a failure of rationality internal to the reasoning process. The second arises when a decision is in some respect untenable in light of the relevant factual and legal constraints that bear on it.

There is however, no need for reviewing courts to categorize failures of reasonableness as belonging to one type or the other. Rather, we use these descriptions simply as a convenient way to discuss the types of issues that may show a decision to be unreasonable. Vavilov at paras 99-101 [ 21 ] Reasonable decisions are based on logical and rational reasoning. Reasonable decisions have an overarching logic without fatal flaws and analyses that lead the administrative decision maker from the evidence to its conclusion: Vavilov at para 102 .

Reasonable decisions must also be justified in relation to the law and facts relevant to the decision: Vavilov at para 105 . [ 22 ] Courts applying a reasonableness standard to administrative decisions should not reweigh evidence. In a case involving a decision of the St. Albert Review Board, the Court of Appeal noted: However, the CARB is not bound by the rules of evidence and has the power to determine the admissibility, relevance and weight of any evidence: MGA , s 464(1).

On a reasonableness test, “it is not for the courts to reweigh the evidence considered by the tribunal”: Canadian Artists’ Representation v National Gallery of Canada , 2014 SCC 42 at para 30 , [2014] 2 SCR 197 [ Canadian Artists’ ].

Further, and in any event, a reviewing court “should not parse the decision or seize on specific errors” ( Edmonton School District No 7 v Dorval , 2016 ABCA 8 at para 40 , 609 AR 280 [ Dorval ]), or embark on a “line-by-line treasure hunt for error” ( Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper, Ltd , 2013 SCC 34 at para 54 , [2013] 2 SCR 458).

In our view, it was not open to the chambers judge to substitute her view of the relevance and weight of the Bourgeois appraisals for that of the CARB, a highly specialized tribunal created to review decisions of assessors as to valuation of property... St Albert Housing Society v St Albert (Composite Assessment Review Board) , 2017 ABCA 129 at paras 26-27 . IV.

Issue [ 23 ] The issue for this Court to decide is whether the Review Board’s decisions are reasonable or unreasonable. [ 24 ] Altus argues that the Review Board’s decisions are unreasonable because: 1) The Review Board erred by failing to accept the actual sales price of the Subject Property as the best evidence of market value. 2) The Review Board erred when it concluded that certain comparable sales were not reflective of market value. 3) The Review Board erred by endorsing an arbitrary decision. [ 25 ] The City submits that Altus is essentially rearguing the merits of the case and asking the Court to override the Review Board’s expertise and substitute a different decision.

The City takes the position that the Review Board decisions are reasonable. V. Property Assessment

[ 26 ] The overarching intent of the MGA is ensuring that assessments are “current, correct, fair and equitable.”: Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd , 2016 SCC 47 at para 46 , citing Edmonton (City) v Army & Navy Department Stores Ltd , [2002] AMGBO No 126 (QL) at para 114. [ 27 ] A municipality must prepare an annual assessment for each property in that municipality, except provincially assessed property: MGA , s 285. [ 28 ] Municipal assessments are prepared by an assessor.

Assessments must reflect certain characteristics and conditions of the property and certain valuation and other standards found in the regulations for that property: MGA , s 289(2).

One of the relevant regulations is the Matters Relating to Assessment and Taxation Regulation , 2018, Alta Reg 203/2017 ( MRAT ). [ 29 ] Section 9(1) of MRAT provides that the valuation standard for the land and improvements (for the type of property at issue in this case) is “market value”, unless sections 9(2) or (3) apply, neither of which apply in this case. [ 30 ] “Market value” is defined as “the amount that a property, as defined in section 284(1)(r), might be expected to realize if it is sold on the open market by a willing seller to a willing buyer.”: MGA , s 1(1)(n). [ 31 ]

Section 5 of MRAT sets out the requirements for assessments based on “market value”: 5 An assessment of property based on market value (

a) must be prepared using mass appraisal, (

b) must be an estimate of the value of the fee simple estate in the property, and (

c) must reflect typical market conditions for properties similar to that property. [ 32 ]

Section 5(

b) requires an estimate of the value in recognition of the fact that the exact market value of a property at a given time cannot be predicted with total accuracy. Rather, MRAT requires assessments to fall within typical ranges and meet statistical tests. Under

section 22 of MRAT , assessments are subjected to various types of audit measures. [ 33 ] The valuation date for assessments is July 1 st of the assessment year: MRAT , s 6. The assessment year is the year prior to the taxation year: MRAT , s 1(e). [ 34 ] Assessors must follow the procedures set out in the regulations: 293(1) In preparing an assessment, an 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. MGA , s 293(1)-(2) [ 35 ] When making a decision, MGA sections 467(1) and (3) require the Review Board to consider the same procedures and standards as an assessor: 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. ... ...

(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. [ 36 ] The Review Board is not bound by the rules of evidence and may determine the admissibility, relevance, and weight of any evidence before it: MGA , s 464(1). The Review Board is not limited to the evidence that was considered by the assessor. [ 37 ] The Review Board hears and considers the evidence and then decides whether the assessed value is correct, fair, and equitable. [ 38 ] Review Board decisions are final.

They are not subject to a statutory appeal but can be judicially reviewed by the Court of Queen’s Bench: MGA , s 470. [ 39 ] Counsel for the Review Board summarized the Review Board role as follows: In

summary, an assessment review board neither sits on appeal from the municipal assessor, nor supervises the manner in which the

municipal assessor calculated the assessment. Instead, an assessment review board considers the assessed value afresh. The assessmentreview board has regard to the onus, the applicable valuation standard, and the assessed values of similar properties in the municipality.If the evidence shows that the assessed value is correct, fair and equitable, the assessment board cannot change the assessed value.However, if the evidence shows that the assessed value is incorrect or unfair and inequitable, or both, the assessment review board mustchange the assessed value to a value that is correct, fair and equitable.

Brief of the Review Board at para 17. VI. Analysis A. Sale price of the Subject Property as indicative of market value [40] For six of the assessments, Altus argues that the Review Board failed to accept evidence of recent sales of the propertiesinvolved in the assessments as the best evidence of market value. One of the assessments Altus referred to for this argument is theSubject Property, Chappelle Boulevard. [41] The Subject Property sold for $27,350,000 on June 9, 2017.

On January 2, 2018, the City assessed the Subject Property at$31,953,000 (as at the July 1, 2017 valuation date). [42] At the Review Board Altus argued that the sale price was the best indicator of market value for the Subject Property andrequested that the assessment be reduced to $27,350,000. [43] On judicial review Altus argues that it was unreasonable for the Review Board to conclude that the market value of theSubject Property was $30,916,500 on July 1, 2017 when the Subject Property sold for $27,350,000 on June 9, 2017.

This is particularlytrue, Altus argues, because the Review Board said the sale was a “good indicator of market value” and accepted the sale as appropriatefor use in determining the applicable GIM. Altus argues that the actual sale of the Subject Property between a willing buyer and a willingseller is not just a good indicator of market value – it is market value. [44] In support of this argument Altus relies on 697604 Alberta Ltd v Calgary (City), 2005 ABQB 512.

In that case, Acton J wrote,at para 24: In my view, the MGB’s failure to rely on the evidence of value provided by the recent sale of the Property fails to meet the test ofreasonableness.

I agree with the following comments from Re Regional Assessment Commissioner, Region No 11 v Nesse Holdings Ltdet al (1984), (ON SC), 47 OR (2d) 766 (Ont HCJ Div Ct) at p 767: It seems to me to be worth remembering that where the Assessment Act, RSO 1980, c 31 requires the determination of what a propertymight be expected to realize is sold on the open market by a willing seller to a willing buyer (s 18(2)), the price paid in a recent free saleof the subject property itself, where, as in this case, there are neither changes in the market nor to the property in the interval, must bevery powerful evidence indeed as to what the market value of the property is.

It is for that reason that the recent free sale of a subjectproperty is generally accepted as the best means of establishing the market value of that property. ... ...I think that generally speaking the recent sales price, if available as it was in this case, is in law and, in common sense, the mostrealistic and most reliable method of establishing market value. [45] Altus further relies on the case of Fording Coal Ltd v British Columbia (1995), (BC SC), 6 BCLR (3d)141 (SC), aff’d (1995), BCLR (3d) 178 (CA) where the British Columbia Supreme Court noted (and the Court of Appeal upheld) thefollowing statement at para 15: “The best evidence of fair market value is what the parties themselves have negotiated in this arm’slength transaction.” [46] I do not consider 697604 Alberta Ltd as authority for the proposition that a recent sales price will be determinative ofestablishing market value in an assessment such as the one in this case.

In 697604 Alberta Ltd the Review Board had refused to considerevidence of a subject property sale after concluding it was atypical. On review Acton J found that there was no evidence of atypicalitywarranting the sale’s rejection and the Board’s rejection of that evidence was unreasonable.

The issue before Acton J was not whetherthe sale price of the subject property was determinative of market value; rather the issue was whether the sale price of the subjectproperty should have been considered in assessing the market value. [47] In this case the Review Board expressly accepted the evidence of the recent sale price as relevant to the assessment of marketvalue. The Review Board agreed that the sale price of the Subject Property was a good indicator of market value for the Subject Propertybut rejected the argument that the sale price alone represented the true market value of the Subject Property.

In determining whether the sale price of the subject property represents market value, the Board is guided by the Matters Relating toAssessment and Taxation Regulation, 2018 AR 203/2017

section 5(

c) which states that an assessment of property based on market valuemust reflect typical market conditions for properties similar to that property. While the sale price of the subject property is a good indicator of market value it is not, by itself, sufficient to set the assessment. In thiscase, the sale price does not reflect market conditions... Altus Group v The City of Edmonton, 2018 ECARB 01878 at paras 39 and 40. [48] The Board went on to review the two comparables that it accepted from Altus (one of which was the Subject Property) and

the six comparables put forward by the City (two of which were the comparables that the Board accepted from Altus, one of which was the Subject Property). The Board held that it was satisfied that the GIM of the six comparables provided by the Respondent was a more reliable indicator of market value. [ 49 ] The issue on judicial review is whether the Review Board’s decision was reasonable. I am satisfied that the Review Board’s decision is reasonable. The Review Board’s reasons and decision reflect a reasoning process that is justifiable, intelligible, and transparent.

I agree with the City’s description of the Review Board’s chain of logic: • The Review Board accepted that the Subject Property sale was valid and a good indicator of market value; • The Review Board held, however, that the sale price alone was not sufficient to determine true market value in this situation because: o The sale price does not appear to reflect typical market conditions; o Typical market conditions must be considered pursuant to

section 5 of the MRAT ; o One or two sales alone are not sufficient to determine value; o Looking at Altus’ two valid comparable sales, and the City’s six valid comparable sales, and applying the City’s proposed 12.53 GIM and the Income Approach provides a more reliable indicator of the true market value of the Subject Property. [ 50 ] This chain of logic is supported by the factual and legal context. There was evidence before the Review Board that indicated that the sale price was unusually low and did not reflect typical market conditions. It is the role of the Board to weigh the evidence before it.

The Review Board has broad authority to weigh and consider the relevant evidence to determine the best possible estimate of market value. Weighing evidence of value and determining market value both fall within the specialized expertise of the Review Board. It is not the role of this reviewing Court to reweigh that evidence or substitute its own findings.

The Review Board held that a better estimate of market value could be obtained by supplementing the evidence of the sale price of the Subject Property with further evidence including recent sales of similar properties. [ 51 ] The decision is also justified in relation to the relevant law. The MGA and MRAT provide that assessors and the Review Board must consider typical market conditions when calculating market value assessments: MGA , ss 289(2)(b), 293(1); MRAT , s 5. Where the sale price of a subject property reflects typical market conditions then it may very well be the assessed value.

Where a Review Board finds, however, that the sale price of a subject property does not reflect typical market conditions, additional evidence will be required. B. Rejection of Altus’ Sales Comparables [ 52 ] Altus argues that the Review Board erred when it concluded that four of six sales put forward by Altus were not reliable indicators of market value. [ 53 ] At the Review Board Altus introduced into evidence the sales of six specific properties (Complainant Sales) that Altus argued ought to be considered when calculating the most accurate GIM.

The Review Board held that two of the six sales were good indicators of value for the properties. One of the sales accepted by the Review Board was the Subject Property discussed above. The Review Board excluded from consideration four of the Complainant Sales on the basis that they were not reliable indicators of market value. Altus argues that the Board’s decision is unreasonable as it is not supported by the evidence before the Board.

i) Complainant Sale 2 – 2703 James Mowatt Trail SW [ 54 ] The Review Board excluded Complainant Sale 2 on the basis that it was a non-arm’s length sale that may have been favourable to the buyer or may have involved other considerations. [ 55 ] Altus argues that the evidence before the Review Board established that the sale was an open market sale between a willing buyer and seller.

Altus points to evidence of emails between the buyer and seller showing that they are unrelated parties and that the purchase price was determined on typical market proforma, as well as the Agreement of Purchase and Sale which shows the parties are independent and arm’s length. [ 56 ] Before the Review Board, the City argued that Complainant Sale 2 involved closely related parties and unusual financing terms that involved the issuance of partnership units.

The City tendered evidence to show that the sale was between partners and in response to Altus’ evidence of emails between the buyer and seller, tendered more documentation showing links between the buyer and seller. [ 57 ] The City submits that the Review Board considered all of the evidence and determined Complainant Sale 2 was non-arm’s length and involved a sale price that may have been favourable to the buyer or have involved other considerations.

The City submits that this was a reasonable decision based on the evidence, and it was logical for the Review Board to find that the sale was not a reliable indicator of market value. [ 58 ] I agree with the City. The Review Board’s decision was reasonable in the context of the evidence before it. ii) Complainant Sales 3, 4, and 6 [ 59 ] Complainant Sales 3, 4, and 6 involved the sale of three properties as a portfolio sale based on a sale price of $182,750 per suite.

[ 60 ] The Review Board excluded Complainant Sales 3, 4, and 6 on the basis that they were not reliable indicators of market value: “The values stated in the transfer documents for each of three properties were based on $182,750 per suite without regard to market area, suite mix, suite size or any other variable that may impact market value.”: Altus Group v The City of Edmonton , 2018 ECARB 01878 at para 36. [ 61 ] Altus argues that the Review Board’s decision to exclude Complainant Sales 3, 4, and 6 was unreasonable.

Altus argues that the three properties share similar characteristics and the sale prices reflect market value. Altus argues that there was no evidence to support the Review Board’s determination that the sale prices were not reflective of market value. Rather, the purchaser provided evidence that the sales were at market value and the similarities between the properties justified their common, per unit price. [ 62 ] Altus argues that the fact that a number of properties were sold for a similar per unit price is not evidence, alone, of a non- market sale.

They say the City did not lead any evidence to support its argument that different suite mixes and market areas should lead to different valuations in these circumstances. [ 63 ] Before the Review Board the City argued that the three sales involved two different market areas, different suite mixes, different years of construction, and other features.

The City took the position that the portfolio represented a collective market value but did not provide a reliable indicator of market value for any particular comparable property. [ 64 ] The City argued that the sale price did not reflect market value because it failed to consider market areas, suite mixes, suite sizes, and other variables that could impact market value. The Review Board accepted this argument. [ 65 ] As stated above, it is the role of the Board to weigh the evidence before it. Altus submitted evidence suggesting the three buildings were similar enough to demonstrate evidence of market value.

The City provided evidence of dissimilarities and showed that different characteristics would affect market value. The Board considered the evidence and found that Complainant Sales 3, 4, and 6 did not provide a good indicator of market value. [ 66 ] I am satisfied that the Review Board’s decision is reasonable. The decision is intelligible and justifiable in the context of the evidence before the Board and the Board’s findings are entitled to deference on review. C.

Decision to Reduce GIM for 17 Properties [ 67 ] At the Review Board Altus argued that the GIM used by the City assessor to calculate the assessments was too high resulting in the properties being overvalued. With respect to the Subject Property the assessor used a GIM of 12.64. Altus argued that a GIM of 11.30 should be used to provide an accurate estimate of market value. This GIM was the median value of the sale GIMs for the six properties put forward by Altus as comparable sales.

For the reasons discussed above, the Board rejected four of the six comparable sales put forward by Altus, the consequence being that the GIM proposed by Altus was not accepted by the Board. [ 68 ] The City argued that a GIM of 12.53 was a more reliable indicator of market value, being the median value of the sale GIMs for the properties put forward by the City as comparable sales. Despite the City’s submissions that 12.53 was the appropriate GIM the City requested that the assessed value of the Subject Property be reduced on the basis of a proposed GIM of 12.23.

On this issue the written submissions of the City state: “The City of Edmonton requests that the 2018 Assessment for account 10697136 [the Subject Property] be reduced to the value of $30,916,500 (GIM from 12.64 to 12.23) given that the COE comparables suggest a lower GIM ”: Roll number 10697136 REC-11200 [underlining added for emphasis]. [ 69 ] The Review Board accepted the comparable sales put forward by the City and found that the 12.53 median GIM put forward by the City was a more reliable indicator of market value.

Despite this finding, the Review Board accepted the City’s recommendation that the Subject Property assessment be reduced from a GIM of 12.64 to 12.23. The Board’s reasons on this issue are set out in one sentence, “The Respondent [City] recognized that the assessed GIMs for this building type were slightly higher than the sale GIMs of similar properties which led to the recommendation”: Altus Group v The City of Edmonton , 2018 ECARB 01878 at para 41. [ 70 ] Ultimately, the City asked the Review Board to reduce the assessment of 17 of the 22 properties being challenged.

The Review Board accepted the City’s recommendation in all 17 cases. [ 71 ] Altus argues that the Review Board’s decision to endorse the City’s recommendation to reduce the GIM for the 17 properties, including the Subject Property, was unreasonable as there was no evidentiary basis for the decision. The comparable sales put forward by the City, and accepted by the Board, supported a GIM of 12.53 as a more reliable indicator of market value.

The reductions proposed by the City apply GIMs that range from 12.16-12.54 and thus the comparable sales cannot be the justification for the reduction. [ 72 ] Altus argues there was no basis to support the reduction of 17 properties and no basis for the exclusion of the other five properties which received no reduction. [ 73 ] Altus did not raise this issue before the Review Board. Altus was aware that the City was recommending the 0.41 GIM reduction for the 17 properties.

Altus did not raise any objections or concerns over the 0.41 reduction other than to argue, generally, that the reduction should be 1.34 as per the six sales comparables that they put forward. Altus did not raise any argument before the Review Board that the 0.41 GIM reduction recommended by the City was arbitrary. Before the Review Board, Altus was thankful for the City’s proposal and agreed that the reductions were premised on the same theory advanced by Altus itself: We thank the Respondent [City]. They have suggested that a GIM adjustment is appropriate here of 0.41.

We feel of course that the Current evidence is different – but again – the theory that they’ve used and what we’ve used is exactly the same. Brief of the City at para 81. [ 74 ] The City argues that it is improper for Altus to raise this issue on judicial review when it was not raised before the Review

Board. Relying on Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61 the City arguesthat this Court should decline to consider the issue. The City argues that if Altus had objected at the hearings, the City could and wouldhave called additional evidence to address the concerns now being raised. The City’s inability to do so results in prejudice to the City. [75] In Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, the Supreme Court of Canada held asfollows at paras 22-26: The ATA sought judicial review of the adjudicator’s decision.

Without raising the point before the Commissioner or the adjudicator oreven in the originating notice for judicial review, the ATA raised the timelines issue for the first time in argument. The ATA was indeedentitled to seek judicial review. However, it did not have a right to require the court to consider this issue.

Just as a court has discretion torefuse to undertake judicial review where, for example, there is an adequate alternative remedy, it also has a discretion not to consider anissue raised for the first time on judicial review where it would be inappropriate to do so: see, e.g., Canadian Pacific Ltd v MatsquiIndian Band, (SCC), [1995] 1 SCR 3, per Lamer CJ, at para 30: “[T]he relief which a court may grant by way ofjudicial review is, in essence, discretionary.

This [long-standing general] principle flows from the fact that the prerogative writs areextraordinary [and discretionary] remedies.” Generally, this discretion will not be exercised in favour of an applicant on judicial review where the issue could have been but was notraised before the tribunal. There are a number of rationales justifying the general rule. One fundamental concern is that the legislature has entrusted thedetermination of the issue to the administrative tribunal.

As this Court explained in Dunsmuir, “[c]ourts . . . must be sensitive . . . to thenecessity of avoiding undue interference with the discharge of administrative functions in respect of the matters delegated toadministrative bodies by Parliament and legislatures” (para. 27). Accordingly, courts should respect the legislative choice of the tribunalas the first instance decision maker by giving the tribunal the opportunity to deal with the issue first and to make its views known.

This is particularly true where the issue raised for the first time on judicial review relates to the tribunal’s specialized functions orexpertise. When it does, the Court should be especially careful not to overlook the loss of the benefit of the tribunal’s views inherent inallowing the issue to be raised.

Moreover, raising an issue for the first time on judicial review may unfairly prejudice the opposing party and may deny the court theadequate evidentiary record required to consider the issue. [citations omitted] [76] I agree that it is improper for Altus to raise this issue on judicial review when it failed to do so at the Review Board. TheReview Board is a specialized administrative tribunal. The value of the GIM reduction falls squarely within the Board’s expertise. Altushad every opportunity to challenge the 0.41 GIM reduction at the Review Board and failed to do so.

I accept the assertion of the City thatif Altus had challenged the value of the reduction at the Review Board the City could and would have called additional evidence toaddress the concerns now being raised. The City’s inability to do so results in prejudice to the City. For these reasons I exercise mydiscretion not to consider the issue. VI. Conclusion [77] For the reasons set out above, I am satisfied that the 22 decisions of the Review Board are reasonable.

I have exercised mydiscretion and declined to consider the arguments of Altus that the Review Board decisions were arbitrary as they relate to the GIMreduction in 17 of the 22 properties. [78] Altus’ application for judicial review is dismissed. [79] If the parties are not able to agree on costs they may make arrangements to address costs before no later than June 22, 2021. Heard on the 10th day of September, 2020. Dated at the City of Edmonton, Alberta this 22nd day of April, 2021.

Bonnie L. Bokenfohr J.C.Q.B.A. Appearances: Steven A.A. Dollansky McLennan Ross LLP for the Applicant Kate Hurlburt, Q.C. Emery Jamieson LLP For the Respondent, Edmonton Composite Assessment Review Board Michael S. Gunther City of Edmonton Law Branch for the Respondent, City of Edmonton