City of Calgary v BCIMC Realty Corporation, 2021 ABQB 888

Court of Queen’s Bench of Alberta Citation: City of Calgary v BCIMC Realty Corporation, 2021 ABQB 888 Date: 20211112 Docket: 2001 01180 Registry: Calgary Between: The City of Calgary Applicant - and - BCIMC Realty Corporation and Calgary Assessment Review Board Respondents _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice D.B. Nixon _______________________________________________________ I. Introduction [ 1 ] BCIMC Realty Corporation (“BRCo”) owns a development property located at 610-2 nd Avenue SW in the Eau Claire district of Calgary (the “Property”).

The City of Calgary’s Direct Control Land Use Bylaw 12D2014 provides for primarily residential development on the Property (the “City Bylaw”). The City has also issued a development permit for the Property that provides for the construction of seven buildings containing 1,095 units (the “Development Permit”). Overall, the permitted development consists of 30%

commercial (non-residential) and 70% residential use. [ 2 ] The assessed value of the Property is $72,140,000 in recognition of the full development potential, based on sales of similar development properties. The development potential of the Property includes the build-out into the air space above the surface area of the land, which can be conceptualized as the development envelope. [ 3 ] For provincial tax purposes, the City’s 2019 assessment notice apportioned the value of the Property as $21,642,000 (30%) for the non-residential portion and $50,498,000 (70%) for the residential component.

At the time of the assessment, however, the surface area of the Property was used entirely as a commercial parking lot. As a result, for the purposes of the municipal property tax assessment, the City classified the Property as 100% non-residential. It applied this classification based on its

interpretation of the City of Calgary Charter, 2018 Regulation , AR 40/2018 (the “ City Charter ”), which amended how various sections of the Municipal Government Act , RSA 2000, c M-26 (the “ MGA ”) are to be read when applied within the City, including the

definitions of “non- residential” and “residential”. The classification determines the mill rate applicable to the Property for municipal tax purposes. [ 4 ] BRCo disagreed with the classification and filed a complaint to the Calgary Composite Assessment Review Board (the “CARB”). It argued that the combination of: (

i) the City Bylaw, which designates the Property as primarily residential; and (ii) the Development Permit, which approved the build-out of the Property, supports its assertion that the classification of the Property should be 70% residential and 30% non-residential, the same as its classification for provincial tax purposes, which acknowledges the current use of the surface area of the Property as a parking lot. [ 5 ] In CARB decision number 141917M-2019, dated November 25, 2019 (the “CARB Decision”), the CARB found it was inherently unfair to base the value of the Property on its full development potential as a mixed-use property, and then not recognize that mixed use in the classification ascribed to the Property for municipal tax purposes.

The CARB went on to find that the City’s approach was inconsistent with: (

i) the value methodology for the property; (ii) its zoning; and (iii) the classification of comparable properties in Calgary. The CARB revised the City’s classification of the Property from 100% non-residential to a split classification of 70% residential and 30% non-residential. [ 6 ] The City seeks judicial review of the CARB’s Decision. It asks that the decision be quashed and that the matter be remitted to a new panel for redetermination. The City asserts that the reasons in the CARB Decision do not provide a logical, intelligible and transparent justification for this outcome. [ 7 ] The City further asserts the CARB: (

i) inadequately addressed the actual commercial use of the Property as a surface parking lot; (ii) conflated classification with valuation based on development potential; and (iii) failed to reconcile its decision with the facts and legislation. The City therefore asserts that the CARB Decision is unreasonable. [ 8 ] BRCo supports the CARB Decision and argues that the CARB correctly interpreted the

definitions of “non-residential” and “residential” in the City Charter to apportion out the part of the Property where commerce takes place.

It submits the split classification of 30% non-residential and 70% residential properly considers not only the current surface area use of the Property but also the total development envelope. [ 9 ] The CARB appeared at the judicial review to speak to the contents of the Record and to make submissions on the appropriate standard of review. [ 10 ] At the heart of this judicial review is whether the CARB’s Decision to replace the City’s classification of the Property as 100% non-residential with a spilt classification of 70% residential and 30% non-residential is reasonable. II.

Issues [ 11 ] The issues to be decided on this application are as follows: a. What is the appropriate standard of review? b. Do the reasons provided in the CARB Decision reveal a rational chain of analysis that lead to the conclusion that the Property should be classified as 70% residential and 30% non-residential? c. Is the CARB Decision justified in view of the relevant law and facts? III. The CARB Decision [ 12 ] At the CARB hearing, BRCo took no issue with the assessed value of the Property.

Rather, it argued the Property should be classified as 70% residential and 30% non-residential, rather than 100% non-residential. BRCo based its position on the property designation in the City Bylaw and the Development Permit. [ 13 ] As indicated above, the Development Permit allowed future development of the Property to be 70% residential and 30% non- residential.

To develop the Property, BRCo would need to build into, and occupy, the airspace above the Property (although it would make no legal difference if the development potential was entirely below the surface instead). [ 14 ] Under the MGA , the assessed value of a property is determined based on the characteristics and physical condition of the property on a legislated physical condition date, which in this case was on December 31, 2018 (the “ LPC Date ”): MGA , section 289(2) . [ 15 ] On both the LPC Date and the CARB hearing date of October 15, 2019, construction of the permitted development had not

yet commenced, and the surface area of the Property was being used entirely as a parking lot. [ 16 ] BRCo presented various arguments to the CARB to justify its requested split classification under the City Charter. The arguments included: (

i) that section 4(16) of the City Charter was enacted to impose a test, namely the issuance of a development permit, to clarify the requirement of intent under

section 297 of the MGA ; and (ii) that the density rights of the Property have value. The density rights occupy the “air rights” above the Property, i.e. the developable air rights or the development envelope. [ 17 ] In contrast, the City argued that the intent of the City Charter was to replace the

definitions of “residential” and “non- residential” in the MGA , and to reverse the default classification of property. The City submitted that under paragraph 4(16) (c)(iv) of the City Charter any property with a commercial use could not receive a residential classification.

The City further argued that actual use of the Property was the defining consideration. [ 18 ] The CARB found that the Property satisfied the definition of residential property in paragraph 4(16) (c)(ii) and (iii) of the City Charter, since it was vacant land where permanent living accommodation was permitted and where a development permit had been issued by the City.

The CARB further found that the assessed value of the Property was based not only on the use of the surface, but also on what could be constructed above the surface of the Property. [ 19 ] Based on these findings, the CARB found the 100% non-residential classification was inequitable, since it based the Property’s value on the development potential, but did not recognize that potential in the classification. The CARB concluded that apportioning the classification as requested by BRCo met the intention of the legislation, and was fair and equitable.

In its Decision, the CARB amended the classification of the Property under the City Charter to be 70% residential and 30% non-residential. IV. Analysis A. What is the appropriate standard of review? [ 20 ] Judicial review involves a considered balancing between the court upholding the rule of law, on the one hand, and acting as a check on executive power, on the other hand. This is an imprecise and often-philosophical exercise that is a source of frequent debate at the highest level of our judicial system.

Where the court falls on the spectrum between intervention and deference has ebbed and flowed over the history of judicial review. [ 21 ] This particular judicial review is pursuant to

section 470 of the MGA and

Part 3, Division 2 of the Alberta Rules of Court . [ 22 ] The standard of review applicable to the CARB’s decision is reasonableness: Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 at paras 16 , 33 and 51 [ Vavilov ]; Calgary (City) v Eau Claire Market Inc , 2020 ABQB 112 at para 7 [ Eau Claire ]; Calgary (City) v Sunridge Mall Holdings Inc , 2020 ABQB 148 at para 6 ; Airdrie (City) v 803969 Alberta Ltd , 2020 ABQB 114 at para 19 [ Airdrie ].

The parties agree on this standard of review. [ 23 ] A reasonable decision is one that falls within a range of possible acceptable outcomes which are defensible with respect to the facts and the law: see Dunsmuir v New Brunswick , 2008 SCC 9 at para 47 [ Dunsmuir ]. There are limits on what a court should pursue. In the context of a reasonableness review, the court: (

i) does not ask itself what decision it would have made in place of the tribunal; (ii) does not need to ascertain the range of possible conclusions; and (iii) does not conduct a new analysis to determine the correct answer: see Vavilov at para 83 . [ 24 ] There are two judicial guideposts that could direct me to conclude that a decision is unreasonable. These two guideposts are not necessarily exclusive of each other, and are as follows: (

a) whether there is a failure in rationalizing the reasoning process (the “First Judicial Guidepost”); and (

b) whether the decision is untenable, given the particular legal and factual constraints (the “Second Judicial Guidepost”): see Vavilov at para 101 . [ 25 ] With the release of Vavilov , it is clear that the starting point is deference to executive decision-making bodies. This is embodied in the strong presumption that the standard of review is reasonableness, rebuttable only under certain exceptions.

Those exceptions do not apply to the present case. [ 26 ] For a court to interfere, the party challenging a decision must demonstrate there are “sufficient serious shortcomings” beyond something which is merely “peripheral” to the decision. Any alleged shortcomings must be “sufficiently central or significant” to render a decision unreasonable: Vavilov at para 100 ; and Airdrie at para 26 . [ 27 ] In considering matters in the context of a judicial review, recent jurisprudence is instructive: see Vavilov . In particular, I am guided by the following judicial comments. (

a) The starting point is judicial restraint: Vavilov at para 75 . (

b) The standard is not perfection: Vavilov at para 91 .

(

c) The onus is on the applicant to establish unreasonableness: Vavilov at para 100 . (

d) The reviewing court should not ask how it would have decided the issue. The question is whether the applicant has demonstrated that the decision is unreasonable: Vavilov at para 75 . (

e) The analysis begins with an examination of the reasons, with respectful attention to, and seeking an understanding of, the reasoning process. The analysis is contextual, taking into account the record, the evidence, and submissions of the parties, which can obviate the need to adjudicate particular issues: Vavilov at paras 84 and 94 . [ 28 ] In a judicial review, a court must consider the outcome of an administrative decision “in light of its underlying rationale in order to ensure that the decision as a whole is transparent, intelligible and justified”: Vavilov at para 15 .

On this point, the majority in Vavilov confirms an earlier articulation by the Supreme Court of Canada: Dunsmuir at para 47 . [ 29 ] A decision is internally irrational if there exist “clear logical fallacies”, such as: (

i) circular reasoning; (ii) false dilemmas; (iii) unfounded generalizations; or (iv) absurd premises. In contrast, if the court is of the view that the reasoning of the decision maker “adds up”, there will be no logical fallacy: Vavilov at para 104 . [ 30 ] In a judicial review, the reasons under review must be read holistically and contextually: Vavilov at paras 79 and 97 . The reviewing court should assess whether the reasons under examination demonstrate: (

i) why and how a decision was made; (ii) that the arguments advanced by the parties have been considered; and (iii) that the decision is made in a fair and lawful manner. B. Do the reasons provided in the CARB Decision reveal a rational chain of analysis that led to its conclusion that the Property should be classified as 70% residential and 30% non-residential? [ 31 ]

Section 285 of the MGA requires that each property be given an assessment, which includes assigning a valuation to a parcel of land and assigning a classification that determines the applicable mill rate: Associated Developers Ltd v Edmonton (City) , 2020 ABCA 253 at para 28 [“ Associated Developers ”]. BRCo took no issue with the assessed value of the Property. The dispute before the CARB was the classification. [ 32 ] As I construe the underlying context, the ownership of the Property confers entitlements to the developable air rights above the surface of that real property: Bruce Ziff, Principles of Property Law , 6 th ed (Toronto: Carswell, 2014) at 111 [“Ziff”] (see “(

b) airspace” heading in Ziff). These entitlements arise because the Development Permit and the City Bylaw already exist in respect of this Property. As a result, the development potential of that air space provides a basis for value. [ 33 ] In other words, in valuing the Property, the City considered the City Bylaw and the Development Permit. Those underlying documents authorized a development envelope for the future building that BRCo is planning to construct on the Property: the authorized development mix is the foundation of the value attributed to the Property.

While it may not be possible to value the general air rights per se with any accuracy, these rights in the form of the development envelope were effectively valued by the City, as were the development rights associated with the surface area of the Property. [ 34 ] There is no dispute that commerce takes place on the Property. Where the parties differ is on whether all or only a portion of the Property should be “backed out” of the residential classification because of the commercial parking lot operation.

The City argues for 100% non-residential classification, since the entire surface area of the Property is used as a parking lot. BRCo submits it was reasonable for the CARB to classify only 30% as non-residential, since this split classification acknowledges the development potential that contributes to the high value of the Property. [ 35 ] Based on the temporary use of the surface area of the Property as a parking lot, without considering the development envelope or the development potential of the Property, the value of the commercial component of the land was in the range of $20,393,100.

This figure was before the CARB and was included in the Certified Record of Proceedings, which was filed with the Court for this hearing. [ 36 ] The legislative framework has four classifications for property: (

i) residential; (ii) non-residential; (iii) farm land; or (iv) machinery and equipment: MGA , s 297(1). Section 297(4) of the MGA provides

definitions for each of these classes. [ 37 ] The City Charter modified various sections of the MGA . Specifically, section 4(16)(

c) of the City Charter replaced the original

definitions of “non-residential” and “residential” in section 297(4) of the MGA . The City asserts the modifications are relevant to this application, in particular, that they affect the classification of property for the purposes of the municipal portion of property tax. [ 38 ] The original

definitions of those two terms in section 297(4) (

b) and (

c) of the MGA read as follows: In this section, ... (b) “non-residential”, in respect of property, means linear property, components of manufacturing or processing facilities that are used for the cogeneration of power or other property on which industry, commerce or another use takes place or is permitted to take place under a land use bylaw passed by a council, but does not include farm land or land that is used or intended to be used for

permanent living accommodation ; (c) “residential”, in respect of property, means property that is not classed by the assessor as farm land, machinery and equipment or non-residential. [Emphasis added.] [ 39 ] Under section 4(16)(

c) of the City Charter, those two

definitions now read as follows: In

section 297 of the [ MGA ], ...subsection (4)(

b) and (

c) are to be read as follows, except for the purposes of

section 359 and Division 5 of

Part 9 of the Act: (b) “non-residential”, in respect of property, means property that is not classed by the assessor as farm land, machinery and equipment or residential; (c) “residential”, in respect of property, means (

i) property or a portion of a property currently used for permanent living accommodation, (ii) a vacant property where permanent living accommodations is the primary permitted use for that land assigned as a land use designation under a land use bylaw passed by a municipal council, or (iii) a property or a portion of a property where permanent living accommodations is a permitted or discretionary use assigned as a land use designation for that land under a land use bylaw passed by a municipal council if a development permit has been issued by the municipality or construction has commenced to build permanent living accommodations on the land , but does not include (iv) a property or a portion of a property on which industry, commerce or farming operations currently take place , or (

v) a vacant property that has more than one primary permitted use assigned as a land use designation under a land use bylaw passed by the council. [Emphasis added.] [ 40 ] In the simplest terms, the

definitions in the City Charter have reversed the default classification for City properties from residential to non-residential. [ 41 ] In its submissions, the City acknowledges that the Property met the conditions in sections 4(16)(c)(ii) and (iii) of the City Charter . Essentially, the City conceded that the Property qualified as “residential” at first instance. The City argues, however, that the CARB did not properly address the exclusions in section 4(16)(c)(iv) of the City Charter, whereas BRCo supports the CARB’s

interpretation. [ 42 ] Based on the new

definitions in the City Charter and the commercial use of the surface area of the land, the City classified the entire Property as non-residential for municipal tax purposes. That is, the City made no allocation to any other classification category. As stated above, the CARB amended this classification. [ 43 ] Notwithstanding the City’s assertions to the contrary, I find the CARB did address the current commercial use of the surface of the Property. In particular, the CARB found that: (

i) the surface area parking operations in respect of the Property fell within the 30% component of the zoning permit that was attributed to the non-residential class; and (ii) the development potential above the surface area is contained in the 70% residential class: CARB Decision at para 34. [ 44 ] I find the reasons in the CARB Decision reveal a rational chain of analysis. I make that determination because the essence of the reasons, albeit brief, demonstrate how and why the decision was made in light of the statutory and common law context in which an administrative tribunal operates: Vavilov at para 79 .

In making this determination, I emphasize that the reasons underlying a decision only need to address the issue at hand. If those reasons address a critical issue in a concise and accurate manner, that is sufficient. [ 45 ] I also find the CARB Decision provided a rational chain of analysis in its approach concerning the

interpretation of section 4(16)(c)(iv) of the City Charter. That is, since the City’s valuation of the Property was based on the future development that will occupy the surface area and its development envelope , I find it was reasonable for the CARB to determine that the surface parking operation falls within the ambit of the 30% non-residential classification. [ 46 ] This construction by the CARB is based on, and is consistent with, the Development Permit and the City Bylaw, both of which were issued by the City.

I note that in the absence of such zoning or development permit, the Property would not have satisfied the definition of residential from the outset. [ 47 ] Given the City’s concession that the Property satisfies the definition of residential at first instance, it was reasonable for the CARB to consider the residential component of the Property in determining what portion of the Property is currently used for commerce. It does not matter whether this space is described as the developable air space, the development envelope, or simply as the development potential of the Property, the end result is the same.

The CARB considered the full nature of the Property in assessing the use of the property that excludes or limits the residential classification. While the reasons could have linked this analysis more directly, the interconnected analysis is clearly present in the CARB Decision. [ 48 ] Given that neither party before the CARB took issue with the 70:30 split for the provincial portion of the property tax, the CARB was justified in applying that split for the municipal portion of property tax based on the fact that: (

i) the assessed value of the

Property was grounded upon the use of the surface area and what could be constructed on the land; (ii) the development envelope hasvalue; (iii) if the only permitted use of the Property was its current use as a parking lot, the value would be significantly less than theassessed value (i.e., the $20,393,100, referred to above); (iv) the land use, permitted use and development potential are relevant toascertaining value; and (

v) it was inherently unfair to value the Property based on its development potential for permitted residential useand then tax the property as if it were 100% non-residential. [49] When I consider the CARB Decision in the context of the aggregate evidence before me, I find the First Judicial Guideposttest favours upholding the CARB Decision. That is, there is no failure in rationalizing the reasoning process in the CARB Decision. As aresult, the CARB Decision provides a logical, intelligible and transparent justification for the outcome that it issued. C.

Is the CARB Decision justified in view of the relevant law and facts? [50] Having conceded that the Property was captured by the definition of “residential” in the City Charter in the first instance, theCity asserts the CARB did not properly address the exclusion in section 4(16)(c)(iv). The City submits that the “residential”classification does not include “a property or a portion of a property on which commerce currently takes place” and applying thatmeaning to the facts of this case was a question of statutory

interpretation for the CARB. [51] The rules of statutory

interpretation are well established. The words of

an Act must be read in their entire context and in theirgrammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of the legislature: ReRizzo & Rizzo Shoes Ltd, (SCC), [1998] 1 SCR 27 at para 21. [52] This statutory

interpretation question falls within the core area of expertise of the CARB. While the relative expertise of thedecision maker no longer plays a role in the selection of the standard of review, that expertise remains important in assessing thereasonableness of a decision. The Supreme Court of Canada comments as follows on this point: An administrative decision maker may demonstrate through its reasons that a given decision was made by bringing that institutionalexpertise and experience to bear: see Dunsmuir, at para. 49.

In conducting reasonableness review, judges should be attentive to theapplication by decision makers of specialized knowledge, as demonstrated by their reasons. Respectful attention to a decision maker'sdemonstrated expertise may reveal to a reviewing court that an outcome that might be puzzling or counterintuitive on its facenevertheless accords with the purposes and practical realities of the relevant administrative regime and represents a reasonable approachgiven the consequences and the operational impact of the decision.

This demonstrated experience and expertise may also explain why agiven issue is treated in less detail: Vavilov at para 93; see also Vavilov at paras 31 and 92; and Eau Claire at para 33-34. [53] The essence of the City’s argument is that the whole of the Property was used as a parking lot at the relevant time, thus noneof the Property qualifies for the residential classification.

In making this argument, the City is effectively saying the “property”, in itscurrent state, only includes the surface area. [54] The City advances this position notwithstanding that the Property is valued by reference to its potential future use, whichincludes the entirety of the development envelope. The City argues that the unused air density, or the development envelope, is simplyan unused right, forming part of the bundle of rights that accompany ownership of the Property.

The City further asserts that it cannot besaid that the air space itself was a divisible portion of the Property such that it could hold a 70% residential classification separate fromthe surface area of the Property. [55] In an effort to bolster its argument, the City further asserts that it is an absurdity to consider the Property as three-dimensionalspace, based on its future development potential. In support of this assertion, the City advances an argument relating to farm land.

Itasserts that if unused air space above farm land were to be classified according to volumetric space, that air space would have to beclassified as non-residential on account of the “air” not being used for farming operations. In my view, this farm land example isunhelpful. Absent an existing development permit allowing a build-out into air space above the hypothetical farm land, the developmentaspect of the air space above farm land is irrelevant. [56] The City also asserts that the CARB failed to properly apply the applicable statutory scheme in rendering the CARBDecision.

In particular, the City asserted that the CARB: (

i) did not base its concerns about inequity, or the tying of valuation andclassification, on the City Charter; and (ii) gave no reasons for the inequity. [57] Inequity does not have to be based on a statutory framework. It is properly recognized as a governing principle ofinterpretation in a decision. If one

interpretation results in an inequity and another

interpretation provides a fair and equitable result, thelatter

interpretation should prevail: Morin v Morin (1978), (NB CA), 22 NBR (2d) 204 (CA) at para 19. [58] The City relies on Associated Developers where the Court of Appeal held that valuation and classification are separateconcepts.

The City asserted that these two concepts were conflated in the case before me when the CARB supported the 70:30classification because it tracked with the mixed-use valuation. [59] The central issue in Associated Developers was whether the definition of “non-residential” in the MGA, which expresslyexcluded farm land, was altered or affected by section 4(3) of the Matters Relating to Assessment and Taxation Regulation AR 220/2004(“MRAT”).

While that particular Regulation has since been amended, it was the relevant regulation at the time. [60] Section 4(1) of the MRAT spoke to the valuation standard for a parcel of land as the market value, or, if the parcel was usedfor farming operations, then agricultural use value would apply. Notwithstanding this direction, the valuation standard for a 3-acreparcel that could be serviced using water and sewer distribution lines located in an adjacent parcel of land would be at market value.

Inother words, notwithstanding that the land was used for farming operations, the valuation standard for a specific 3-acre area would be atmarket value. [61] Given that the actual use of the land governed its classification, the Alberta Court of Appeal found the provision in MRAT,

which excepted three acres from the “farm land” designation for valuation purposes, did not alter the classification. The Court also noted that properties can contain more than one assessment class and that classification is not always determined on the basis of actual use, permitted uses may also be relevant: Associated Developers at paras 37-38 . [ 62 ] Concerning the City Charter, both use and intended use of land are relevant to determining the “residential” classification. Section 4(16)(c)(

i) of the City Charter speaks to actual use for permanent living accommodation. In contrast, sections 4(16)(c)(ii) and (iii) of the City Charter introduce the element of “intended future use” as permitted in a land use bylaw or where a development permit has been issued. This is a very different scenario than what was before the Court of Appeal in Associated Developers . [ 63 ] The City Charter excludes from the definition of “residential”, a property or a portion of a property used for commerce.

When I consider the CARB Decision in the context of the aggregate evidence before me, I find the Second Judicial Guidepost test favours upholding the CARB Decision. That is, the CARB gave effect to the statutory language. The CARB Decision is within the tolerable boundaries of the language of the City Charter and one which was logically open for the CARB to reach.

That is, the result is one the statutory language can reasonably bear. [ 64 ] I make this determination because the structure of the exclusion embedded in section 4(16)(c)(iv) of the City Charter is framed so that it can be applied to carve-out “a property or a portion of a property” on which commerce currently takes place. This invites apportionment, as opposed to requiring that “the whole” of the disputed property be carved-out of the definition of “residential”.

Indeed, the City provided the apportionment sought by BRCo in its assessment notice concerning the provincial portion of the property tax. [ 65 ] Since the City accepts that the entire Property is captured by the term “residential” in the first instance, I find it was reasonable for the CARB to conclude that the carve-out of only the surface component of that property falls within the scope of section 4(16)(c)(iv) of the City Charter.

If the Property includes the entire development envelope to satisfy the definition of “residential” under section 4(16)(c)(ii) and (iii) at first instance, then the rules of statutory

interpretation require that the determination of whether commerce takes place on the property or a portion of the property under subparagraph (iv) must rely on the same expansive understanding of what constitutes the property in subparagraphs (ii) and (iii). This determination by the CARB is entirely consistent with the fact that the ownership of the Property also confers upon BRCo the development envelope entitlements. [ 66 ] The CARB accepted that the 30% non-residential zoning of the future development would cover the area presently used for commerce.

From the perspective of the CARB, that meant it could apply the 70% residential and 30% non-residential split classification without running offside the

definitions of “non-residential” and “residential” in the City Charter. [ 67 ] While I might have said more than what is included in the CARB Decision to bolster the internal rationale, the standard is not perfection: Vavilov at para 91 . Further, what the CARB said was adequate. [ 68 ] In making this point, I emphasize that it is neither my job in the course of a judicial review to ascertain the range of possible conclusions nor to conduct a new analysis to determine the correct answer: Vavilov at para 83 .

Instead, my obligation is to determine whether the CARB Decision is unreasonable: Vavilov at para 83 . [ 69 ] I address that obligation by determining whether the CARB Decision falls within a range of possible acceptable outcomes: Vavilov at 86. In my view, the CARB Decision does fall within the range of possible acceptable outcomes. Notwithstanding its brevity, it does so in a manner that is logical, intelligible and transparent. V. CONCLUSION [ 70 ] Based on the facts and analysis, I find the reasons in the CARB Decision reveal a rational chain of analysis.

While the chain of analysis may not be perfect, as I commented above, perfection is not required. In my view, the how and why of the CARB Decision is readily apparent on its face: Vavilov at para 79 . [ 71 ] Further, in determining whether there is a logical line of analysis, the reasons can be read in conjunction with the record to understand the decision maker’s reasoning on critical points: Vavilov at para 103 .

When I read the CARB Decision in the context of the record before me, I am satisfied that there is a logical line of analysis. [ 72 ] Based on the facts and analysis, I find the CARB Decision is justified in the context of the relevant law and facts that underly this case. [ 73 ] Once the CARB found the City Charter allowed for an apportionment, the 70:30 split was a question of fact. [ 74 ] Based on the aggregate facts and analysis, I find the CARB Decision discloses coherent internal reasoning.

As a result, the CARB Decision was reasonable. [ 75 ] Given the above findings, I decline to grant the requested Order quashing the CARB Decision and the request for a new CARB panel for a redetermination. VI. Costs [ 76 ] If the parties cannot otherwise agree, they may speak to costs at their convenience.

Heard on the 15 th day of April, 2021. Dated at the City of Calgary, Alberta this 12 th day of November, 2021. D.B. Nixon J.C.Q.B.A. Appearances: Christina I. Lam and Nathan W. Irving for the City of Calgary Gilbert J. Ludwig, QC for the BCIMC Realty Corporation Shaun Fluker for the Calgary Assessment Review Board