Paul g. Fitzpatrick Applicant And: TOWN of CONCEPTION BAY SOUTH Respondent, 2018 NLSC 16

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Fitzpatrick v. Conception Bay South (Town) , 2018 NLSC 16 Date : January 29, 2018 Docket : 201601G3686 Between: Paul g. Fitzpatrick Applicant And: TOWN of CONCEPTION BAY SOUTH Respondent Before: Justice Alphonsus E. Faour On Judicial Review From: A Decision of a Review Commissioner dated the 1st day of June 2016. Place of Hearing: St. John’s, Newfoundland and Labrador Date(

s) of Hearing: January 22, 2018

Summary: On an application for judicial review of a decision of a Review Commissioner under the Assessment Act, 2006 , the court ruled that it was unreasonable to fail to address the principle of uniformity in assessed values throughout the municipality. The decision was vacated, and remitted to the Commissioner for reconsideration with direction. Appearances: Paul G. Fitzpatrick Appearing on his own behalf

Hilary A. Wicks Appearing on behalf of the Respondent Authorities Cited: CASES CONSIDERED: Carbonear (Town) v. Aisthorpe, 2014 NLTD(G) 65; Dunsmuir v. New Brunswick, 2008 SCC 9; LabattBrewing Co. v. St. John’s (City), 2011 NLCA 75; Jonas v. Gilbert (1881), 1881 CanLII 36 (SCC), 5 S.C.R. 356, 1881 CarswellNB 71;Shell Canada Products Ltd. v. Vancouver (City) (1994), (SCC), 1 S.C.R. 231, 1994 CarswellBC 115; St. John’s (City)v. Hotel NFLD 82 & Chimo Hotels, 2003 NLSCTD 78; Murphy, Re (1994), (NL SC), 117 Nfld. & P.E.I.R. 243,1994 CarswellNfld 76 (S.C.T.D.). STATUTES CONSIDERED: Assessment Act, 2006, S.N.L. 2006, c.

A-18.1. RULES CONSIDERED: Rules of Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D. REASONS FOR JUDGMENT Faour, J.: INTRODUCTION [1] This is an application seeking Judicial Review of the decision of an Assessment Review Commissioner in accordance withthe Assessment Act, 2006, S.N.L. 2006, c. A-18-1. The Municipal Assessment Agency (“MAA”), as part of its statutory mandate,assessed the Applicant’s property for municipal tax purposes. He disagreed with the assessment, and appealed to a ReviewCommissioner in accordance with the Act. The Commissioner released a decision on June 1, 2016.

The applicant now asks this court toreview that decision as he says the result was not in accordance with the principles set out in the Act, nor with the evidence submitted atthe Review hearing. [2] This proceeding is brought by way of an Appeal under

section 39 of the Act. While it provides for the right of appeal, it alsolimits the powers of this court. The provision reads as follows: 39. Appeal to Trial Division

(1) A party aggrieved by a decision of a commissioner may appeal from that decision to a judge of the Trial Division in the judicial centre in which the real property is located upon giving written notice to allparties and to the Trial Division within 30 days after the mailing or delivery to that person of the decision of the commissioner.

(2) The practice and procedure relating to appeals under the Judicature Act, and the Rules of the Supreme Court, 1986 apply toproceedings under this section.

(3) An appeal of a decision of a commissioner under subsection (1) may be made on a question of law or jurisdiction.

(4) A commissioner may be represented by counsel and heard on an appeal under this section.

(5) The court shall either confirm or vacate the decision of the commissioner and where vacated the court shall refer the matter backto the commissioner with the opinion of the court as to the error in law or jurisdiction and the commissioner shall deal with the matter inaccordance with that opinion. [3] As I have noted, while subsection (1) provides that this is an appeal, I must also be guided by subsections (3) and (5) whichlimit the nature of such an appeal. In the result, this proceeding is in the nature of a judicial review, and not in the nature of a re-hearing.

My only options are to confirm the decision, or to vacate it, and remit it to the Commissioner for a re-hearing with directions. InCarbonear (Town) v. Aisthorpe, 2014 NLTD(G) 65, the court was dealing with a similar provision in the Urban and Rural Planning Act,2000, S.N.L. 2000, c. U-8 which governed an appeal from a Regional Appeal Board concerning municipal zoning. Justice Paquette

noted that this is not a re-hearing. She said at paragraph 15: 15. …the court does not re-hear the proceedings before the Board and render its own decision. A determination is made as to whether the Board erred in law and/or jurisdiction in its decision. If so, the decision is vacated and the Board is provided direction as to the correct legal and jurisdictional principles to be applied to the particular circumstances arising in the context of its decision-making. [ 4 ] This means that in this case I am only to consider the rationale and approach of the Commissioner in reaching its decision.

I am not permitted to substitute my own decision for that of the Commissioner, but if I find an error in his reasoning, then I must remit for reconsideration. [ 5 ] The Applicant, who I will refer to variously as the “Taxpayer”, submits that the Commissioner erred in law in applying the principles set out in the Act to guide the assessment of properties. The relevant portions of

section 17 read as follows: 17. Assessment of real property

(1) An assessor shall assess real property at actual value.

(2) The actual value of the real property under subsection (1) shall be made by determining the actual value of the real property as of the base date.

(3) In forming an assessment for the purpose of subsection (1) an assessor shall have regard to the assessment of other properties in the city or municipality being assessed to ensure that the taxation falls in a uniform manner upon the real property that is subject to taxation in the city or municipality. [ 6 ] This provision sets out two principles by which assessments of property must be completed. The first is to determine the actual value, which I take to be the market value so far as it can be determined. The second may be, at times, inconsistent with the first.

An assessment of one property must bear a relationship with other similar properties, such that the burden of taxation is shared equitably, or uniformly, on properties that are taxed in the municipality. It is the Applicant’s submission that the Commissioner did not follow these principles in reaching his decision. Background [ 7 ] The Applicant resides at 32 Kingswood Drive (the “subject property”) in the Town of Conception Bay South. The house was built between 2000 and 2001.

It comprises about 2,600 square feet of living space including the basement. [ 8 ] In the most recent assessment, for the 2016 taxation year, the MAA assessed the property as having a value of $516,000. The “Property Assessment Notice” issued by the MAA was dated October 5, 2015. It notes that the assessment for 2016 is based on the value of the property as of January 2014. As provided in the Act , a review was sought by the taxpayer from the MAA, which affirmed the original assessment. [ 9 ] A further appeal was made to the Assessment Review Commission.

At the hearing before the Commissioner, the Applicant submitted that the assessment of his property, when compared with other similar properties in similar neighbourhoods in the Town, did not comply with the principles either of market value or equitable treatment. [ 10 ] The evidence presented at the hearing included the history of the assessment of his property, and that of other properties on his street and in several nearby sub-divisions, including Birchwood Place.

With respect to his street, Kingswood Drive, he presented a chart showing the increase in the assessed value of his property from 2012 to 2016 when compared with all of the other properties.

That comparison revealed the following: 2012 2013 2015 2016 % incr Subject Property $342,500 $456,800 $426,000 $516,000 50.65% Average Increase for all properties for the same period 35.90% [ 11 ] He presented a similar chart for 19 homes on Birchwood Place, and found that the average increase in assessments from 2011 to 2014 was 6.88%. [ 12 ] In addition, he presented data on the absolute values of homes on his street, and at least two similar streets. He submitted that many of these homes were similar to his property, and had assessments which were significantly lower.

He noted that one property, number 1 Kingswood Drive, was identical to the subject property and was built at the same time by the same builder. It sold initially at a higher price than the subject property. It was assessed in 2016 at $473,400. [ 13 ] The Commissioner issued his decision on June 1, 2016. He acknowledged the evidence submitted and seemed to agree that there was an inequity.

He said, at page 3 of his decision: I have reviewed all the information submitted by the Appellant and I am satisfied that the property is over assessed in relation to similar properties and the assessed value is not uniform with other similar properties in the neighbourhood. There was no explanation provided

to suggest why the value of the subject property is higher than civic number 1 which Mr. Fitzpatrick said was similar to his property and built the same time by the same builder.

Also why the value of the subject property which once was lower than others on the street now is valued the highest. [ 14 ] The Commissioner acknowledged the disparity, and reduced the assessed value from $516,000 to $473,400, the same as number 1 Kingswood Drive. [ 15 ] The Applicant, in this proceeding, has taken issue with this conclusion, on the basis that using number 1 Kingswood Drive as the comparator does not create uniformity with assessed values of comparator properties on the same street, and in similar, adjacent neighbourhoods.

He maintains that by not addressing the other properties referenced in his submission, the Commissioner’s result still falls short of achieving any degree of uniformity of assessments with the other properties in the municipality used as comparators. Many of the properties he referenced had assessments which were substantially lower than that applied to the subject property, in many cases over $100,000 lower. [ 16 ] On this Application, the following issues have been raised: 1. What is the applicable standard of review for cases where non-uniformity in the property assessment process is at issue? 2.

What is the role of the principle of uniformity in an assessment appeal? 3. Was the Decision of the Commissioner consistent with the principles set out in

section 17 of the Act ? 4. If not, what is the remedy to be granted? Standard of Review [ 17 ] The first issue identified by the Applicant is the applicable standard of review. In any judicial review of an administrative decision, reference is made to Dunsmuir v. New Brunswick , 2008 SCC 9 , where the Supreme Court of Canada articulated two standards, either the higher standard of “correctness”, or the more deferential standard of “reasonableness”. [ 18 ] Both sides in this case appear ad idem that the standard of review for this appeal ought to be the less deferential standard of “correctness”.

In Dunsmuir the Court directed that a reviewing court should first look to previous decisions. At paragraph 62: 62. In

summary, the process of judicial review involves two steps. First, courts ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question. Second, where the first inquiry proves unfruitful, courts must proceed to an analysis of the factors making it possible to identify the proper standard of review. [ 19 ] Both sides in this proceeding accepted that a previous decision of the Court of Appeal has determined the question. In Labatt Brewing Co. v. St.

John’s (City) , 2011 NLCA 75 , reference was made to the principles set out in Dunsmuir and then determined that the appropriate standard for reviews of a Commissioner was correctness. At paragraph 29: 29. In this case, the Commissioner was faced with appeals based upon statutory

interpretation and the basic legal principles of uniformity and equality as fundamental considerations under a new two-tiered assessment regime enacted for commercial property taxation in the Province. The Commissioner was deciding a question of law which he considered to be within his jurisdiction which required the

interpretation and application of the

definitions of "special purpose property" and "reproduction cost" set out in

section 18 of the Act. While counsel for the City submitted that the Commissioner possesses special expertise by virtue of having worked for many years in the field of municipal property assessment, this would not justify holding the Commissioner to a reasonable standard regarding

interpretation of key assessment provisions when issues of discrimination and lack of uniformity among classes of property owners are under consideration. With respect, I am of the opinion that the proper standard of review of the Commissioner's as well as the reviewing judge's

interpretation of sections 17 and 18 of the Act in the context of these appeals is correctness. [ 20 ] I note that in the Labatt case, the issue was the

interpretation placed on a specific provision in commercial property assessments which applied to properties for which no other classification existed. In that case, the assessment value to be placed on a property purpose built for a brewery, and of little use for any other purpose was at issue. The reviewing court had to determine a very narrow issue – did the Commissioner interpret the provision properly. [ 21 ] With respect, the issue in this case is, in my view, quite different. The Commissioner was performing his statutorily defined role – that of applying the principles in

section 17 to the assessment of the subject property. That would require consideration of the value of the property, based on what it might realize in a sale in the market existing at the time of assessment, but as well, whether the resulting value provided some degree of uniformity with other similar properties.

The purpose of this latter consideration is, of course, to ensure a degree of equity in taxation among taxpayers who have properties that are similar and similarly situated. [ 22 ] Both sides seem to accept, without any further analysis, that if the Court of Appeal determined that the Commissioner should be subject to a “correctness” standard in the Labatt case, the same standard should apply here. I do not necessarily agree. The standard of review ought to relate to the nature of the question before the decision-maker. In Labatt, it was a question of law that is the

interpretation and application of the provisions respecting a “special purpose property”, and how to interpret a provision that provided fora determination among various classes of taxpayers. In this case, the question is more properly characterized as one where the decision-maker was required to apply certain principles to achieve a result, which could have been within a range of results. [23] As a result, perhaps the applicable standard is more nuanced than at first might appear.

The Court of Appeal has certainlydirected that where “discrimination and lack of uniformity among classes of property owners are under consideration”, the correctnessstandard applies. In this case, I would apply the less deferential standard to the Commissioner’s

interpretation of these provisions; inparticular, subsection 17(3) of the Act. However, the application of these principles may require a different standard. [24] This case does not raise issues of discrimination between and among classes of property owners. The Act only raises twoclasses, that of residential and commercial property owners. This case involves only the question of uniformity within the class ofresidential property owners.

It seems to me that in undertaking such an exercise, the Commissioner should have more discretion, andtherefore be held to a more deferential standard, rather than the correctness standard as set out in the Labatt decision. At paragraph 47 ofDunsmuir the Supreme Court set out the parameters of a “reasonableness” standard: 47.

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. [25] When I consider that a review Commissioner under the Act may arrive at a result, which is in an acceptable range, it does notseem to me that a correctness standard should apply. Is it possible to determine the “correct” assessment for a property?

It is moreappropriate to determine whether an assessment falls within a reasonable range, and that in considering such a determination, there be“justification, transparency and intelligibility” in the process leading to a result. [26] I note that the Commissioner is a decision-maker authorized by the Act to determine the assessed value of properties. He isinterpreting his home statute and as such is presumed to have an expertise not possessed by the court. [27] I also note that the legislation authorizing an Application to this court limits the remedy the court may impose should thedecision not be confirmed.

This is a further indicator that the court should be deferential to the decision of the Commissioner. [28] Both these factors are set out in Dunsmuir as being considerations in establishing a “reasonableness” standard. As a result, Iaccept that the reasonableness standard ought to apply to the Commissioner’s application of the principles in this case, based on therationale set out in Dunsmuir, and distinguishing the result in Labatt. Consequently, I must hold the Commissioner to a correctnessstandard in his

interpretation of the principles in subsection 17(2), but show a level of deference to the decisions and the process of theCommissioner when he applies these principles to the issues raised. For the latter part, that requires that I look for justification,transparency and intelligibility in the decision-making process, and find that the decision falls within a range of acceptable outcomes. [29] In applying these standards, I must also be mindful of the importance of this exercise to the entire taxation regime formunicipalities.

To that end, I must examine the nature and rationale for uniformity in assessments among taxpayers in the samecategory. The Question of Uniformity [30] The subject property is subject to assessment for municipal taxation purposes by the Municipal Assessment Agency (“MAA”),which takes its authority from the Act. The assessment process is designed to ensure that the taxation burden in any municipality isequitably distributed among all taxpayers. In the case of property taxes, the municipality will set one rate of taxation for differentcategories of property.

The Act, in subsection 3(2) identifies two such categories, residential property and commercial property. Themunicipality may set different taxation rates for each of the categories. In this proceeding, we are concerned about the assessment of aresidential property. [31] Equitable treatment in taxation is well grounded in the common law in this country. In Jonas v. Gilbert (1881), 1881 CanLII36 (SCC), 5 S.C.R. 356, 1881 CarswellNB 71 the Supreme Court of Canada set out the principle at paragraph 9 of the Carswell version: 9.

Unless the legislative authority otherwise ordains, everybody having property or doing business in the country is entitled toassume that taxation shall be fair and equal, and that no one class of individuals, or one species of property, shall be unequally or undulyassessed. [32] The Supreme Court of Canada has reinforced this concept. In Shell Canada Products Ltd. v. Vancouver (City) (1994), (SCC), 1 S.C.R. 231, 1994 CarswellBC 115 Justice McLachlin (as she then was) said at paragraph 105: 105.

Discrimination in the granting of licenses, taxes and municipal privileges is generally viewed as requiring express authorizationby the empowering legislation because of the presumption that the legislature intends all citizens to be treated equally on such matters. [33] This principle has been acknowledged in this jurisdiction. In Labatt, the Court of Appeal cited a case from the BritishColumbia Court of Appeal in affirming the principle of equitable treatment. At paragraph 38: 38.

The British Columbia Court of Appeal elaborated upon the common law principle forbidding discrimination within a class oftaxpayers in Vancouver Assessor, Area No. 9 v. Bramalea Ltd. (1990), (BC CA), 52 B.C.L.R. (2d) 218 (B.C. C.A.)

(leave to appeal to SCC dismissed [1991] S.C.C.A. No. 52 (S.C.C.)) as follows: [12] The second principle on which the system rests, that there be "equity" as between assessed values of similar lands, is likewise foundpartly in the statute and partly in the common law, the common law being reflected in rules applied by the courts in the

interpretation oftaxing statutes. [13] More than 100 years ago, in Jonas v. Gilbert (1881), 1881 CanLII 36 (SCC), 5 S.C.R. 356, Chief Justice Ritchie laid down the lawin Canada concerning the taxpayer's right to equitable treatment in the assessment process.

The Chief Justice said (at p. 366): Unless the legislative authority otherwise ordains, everybody having property or doing business in the country is entitled to assume thattaxation shall be fair and equal and that no one class of individuals, or one species of property, shall be unequally or unduly assessed. [14] Chief Justice Ritchie emphasized (at p. 365) that "a power to discriminate must be expressly authorized by law and cannot beinferred from general words." It is, of course, apparent that the principle so stated must apply with at least equal force wherediscrimination might otherwise occur between taxpayers within a class: Re Allen and Mimico (1920), 19 O.W.N. 150; Chapman v.McLeod, [1949] O.W.N. 395. [15] The common law presumption that taxing authorities are required to deal even-handedly with all taxpayers has, if anything, beenreinforced by our Assessment Act. [34] The importance of this concept is set out in subsection 17(3) of the Act.

It sets out the principles, which should guide theassessment process. In St. John’s (City) v. Hotel NFLD 82 & Chimo Hotels, 2003 NLSCTD 78, the issue of equitable treatment arose ina commercial assessment context. At paragraph 12, Chief Justice Green (as he was then) noted the same two principles which mustanimate property assessments for municipal taxation purposes: 12. Although the concept of market value as of a base date is the basis for assessing properties under the Act, it is however, subject toone qualification.

Subsection 49(2) of the Act requires the assessor to "have regard to the assessment of other comparable properties sothat taxation falls in a uniform manner upon all residential and commercial properties in the City". This principle of uniformity is basedon the notion of equitable treatment of all taxpayers. [35] While Chief Justice Green was dealing with a provision in the City of St. John’s Act, the principles are applicable to the Act inthis case, as the provision is essentially the same as subsection 17(3).

He went on to quote from an earlier decision which he had issued– Murphy, Re (1994), (NL SC), 117 Nfld. & P.E.I.R. 243 (NLTD), 1994 CarswellNfld 76 where the point wasfurther articulated: 18. …the assessment of what a property would realize if sold in the open market by a willing seller to a willing buyer represents theupper limit of what an assessment should be for the purposes of the Act but that that amount ought nevertheless to be reduced if it can bedetermined that the assessments of other like properties in the city, for whatever reason, have been set at a lower amount.

In other words,market forces apply, but they are to be tempered with notions of fair and equitable treatment of all taxpayers. [36] I take it from these authorities that the concept of equitable treatment in taxation is a principle, which must underlie allassessments, or consideration of reassessments, because of the impact of inequitable assessments on the taxation system. The principlemust not only be acknowledged in any assessment proceeding, but must also underlie the rationale for any review of an assessment.

It isconsistent with the direction in subsection 17(3) of the Act that both actual value, as required by subsection 17(1) and uniformitythroughout the municipality must be the basis for such assessments. [37] It also must reflect the direction provided both in the Act, at

section 17, and in the Chimo and Murphy cases, that the first stepfor any assessment is to determine the actual, or market value. Then the principle of uniformity must be applied to ensure that thetreatment of all taxpayers is equitable. The Hearing [38] The Commissioner held a hearing on the matter on May 19, 2016. He issued his decision on June 1, 2016. He quite properlyarticulated the issue before him, as submitted by the Applicant, at page 1 of the decision: Paul Fitzpatrick submitted a brief outlining the reasons for his appeal.

He feels that the assessment value does not comply withsubsection 17(1) and (3) of the Assessment Act, 2006 in that the assessed value does not reflect actual value and also the assessment hasnot been performed with regard to the assessment of other properties in the municipality to ensure that taxation falls in a uniform mannerupon the real property that is the [sic] subject to taxation in the municipality.

Further, the assessment has been carried out in a mannerthat violates the common law presumption of equitable treatment of taxpayers. [39] Fundamentally, the latter comment is the basis for this proceeding, and one of the key issues to be determined by theCommissioner. To that end, the evidence before the Commissioner consisted almost exclusively of the submission of the Taxpayer. TheMAA was conspicuous by the absence of detail or justification for its assessment. There was, in fact, no evidence presented at the

hearing to refute the submission of the Taxpayer. [ 40 ] The Taxpayer presented several categories of evidence: 1. An historical record of the assessments of his property, showing an increase in its assessment from 2012 to 2016 of 50.65%; 2. A listing of the assessments for all the properties on Kingswood Drive, showing an average increase for the same period of 35.9%; 3. A listing of assessments for properties on Birchwood Place, which he said were comparable properties in an area that was developed at about the same time as Kingswood. It showed an average increase between 2011 and 2014 of 6.88%. 4.

A listing of assessments for land in respect of properties in the general area, which he said demonstrated that apparently superior and larger lots were assessed at values similar to, or less than, his much smaller lot; and, 5. For several of the comparator properties, evidence of actual sale prices, which were not consistent with the assessed values. [ 41 ] He argued that the evidence demonstrated several things: 1. That the assessment for his property did not reflect the market value based on actual sales of comparator properties; 2.

That the increase in his assessment was not consistent with other properties on his street; 3. That the assessed values of most of the properties on Kingswood Drive were higher than those on comparable streets in adjacent neighbourhoods; and, 4. That therefore the taxation burden was not uniformly distributed among the residential properties in the municipality. [ 42 ] The representative from the MAA responded by speaking of the process and considerations used in reaching a determination of assessed value. However, he did not present evidence to contradict the evidence of the Taxpayer.

He responded that he would have to review the information presented, and said (from the transcript of the hearing at page 41): Maybe if I had it before I might have been able to address some of your concerns... [ 43 ] Notwithstanding that comment, he declined the invitation of the Commissioner to come back at another time after he had an opportunity to review the information presented by the Taxpayer.

In the absence of any evidence from the MAA, the Commissioner was left with only the evidence of the Taxpayer to consider. [ 44 ] Even though the representative of the MAA did not present any contrary evidence, the Commissioner could have insisted on further evidence to address the issues raised by the Taxpayer. The statute provides the Commissioner with inquisitorial powers, and hence the authority to seek information from the MAA where necessary.

Section 35 of the Act sets out the powers: 35. Proceedings at appeal

(1) A commissioner may summon witnesses to attend and give evidence and produce documents at an appeal hearing.

(2) A commissioner may administer oaths and take affirmations and may require witnesses to give evidence under oath or by affirmation.

(3) A person who is summoned to attend an appeal hearing and who fails or refuses to attend or to give evidence or produce a document when required to do so is guilty of an offence and liable on

summary conviction to a fine not exceeding $50 a day for each day the offence continues and in default of payment to imprisonment for a period of not more than 7 days for each day the offence continues or to both a fine and imprisonment.

(4) For the purpose of holding an inquiry under this Act, a commissioner has all the powers of a commissioner under the Public Inquiries Act . [ 45 ] Consequently, the Commissioner was not without a remedy to ensure that there was sufficient information before him to properly address the uniformity principle. He was clearly cognizant of the issues, and appeared to accept and acknowledge both the submissions of the Taxpayer and the principles, which should animate the review.

Analysis [ 46 ] At the beginning of his decision, the Commissioner cited the principles of market value and uniformity, and appeared to agree with them. Assuming an articulation of these principles means he adopted them, and then on the issue of

interpretation of the statute, he has met the correctness standard. [ 47 ] He then went on to recite the various evidential submissions of the Applicant about other properties in the vicinity, which would be comparators for the purposes of determining the degree of uniformity with other taxpayers. [ 48 ] He decided, on page 3 of his decision, that the subject property was “over-assessed” in relation to other properties. This conclusion had to be based on the data submitted by the Applicant, because there was no other evidence presented.

Then, without any rationale or justification, he used the property at number 1 Kingswood Drive as the basis for his decision that the assessed value of the subject property ought to be the same. He did not consider the broader issue of whether there was uniformity generally throughout the municipality, nor, indeed, with the examples submitted by the Applicant. [ 49 ] In deciding whether the decision met the reasonableness standard, the only issue arises from the Commissioner’s decision to use one similar property as the basis for setting the assessment of the subject property.

Was the decision unreasonable in the absence of an examination of the assessed value of subject property when compared with other properties, in order to achieve a degree of uniformity in the municipality? The Taxpayer, in an un-contradicted submission, took the position that the comparator property was itself over- assessed relative to other properties in the municipality and therefore using only that property as a comparator did not serve to satisfy the uniformity principle. [ 50 ] The Commissioner was obligated to address the two factors set out in

section 17 – market value and uniformity of taxation burden. He did not perform that exercise. [ 51 ] He acknowledged the arguments made relative to the actual value and uniformity at page 3 of his decision, as noted above. He found: 1. That the subject property is over-assessed in relation to similar properties; 2. That no explanation was forthcoming from the MAA to justify the assessment; 3.

That there was no explanation as to why the subject property was assessed at a lower level than others on the street in the past, and now bore the highest assessment. [ 52 ] These findings should have led him to an examination of the assessed values of at least the properties submitted by the Taxpayer and whether the requirement for uniformity had been demonstrated. [ 53 ] The only evidence of comparator properties for the purposes of the uniformity principle was that presented by the Applicant. It was not contradicted by any other evidence presented at the inquiry.

The MAA did not present evidence, even though it was in the best position to provide data that would serve consideration of the uniformity principle. [ 54 ] The Commissioner simply said, in the last paragraph of his decision: I have not been provided with details of the size of the other houses and land on Kingswood Drive to be able to see which ones are most similar. Having considered all the relevant information, I have selected civic number 1 as being similar, as pointed out by the appellant . . . . [ 55 ] The question is whether the Commissioner was bound to provide some rationale for his decision.

He used one other property as the basis for his decision, but did not address in any way the question of whether, or how, this addressed the uniformity principle. [ 56 ] Dunsmuir requires that two qualities of reasonableness be satisfied. The Commissioner was required to provide, first, “justification, transparency and intelligibility” in reaching his decision, within the decision-making process, and second, that the decision be “. . . within a range of possible, acceptable outcomes . . .” ( Dunsmuir , paragraph 47 ).

It is possible that he may have met the second quality in providing a result that was within the range of acceptable outcomes. However, we cannot determine whether it did, because he provided insufficient rationale for his decision to choose one property as the basis for setting the assessment of the subject property.

[ 57 ] He acknowledged there was no evidence from the MAA to contradict the submissions of the Taxpayer. He made findings of fact, which suggested he was cognizant of the inappropriate assessment attached to the subject property. That should have formed the basis for even a cursory examination of the general assessed values of the similar properties, which were in evidence. Instead, he simply accepted that one property was an appropriate comparator, and decided that the subject property should have the same assessed value. [ 58 ] That may or may not have been the reasonable result.

However, in the absence of any consideration about uniformity with other properties in the municipality as directed by subsection 17(3) of the Act , he failed to satisfy the reasonableness test, which requires justification, transparency and a rationale connection with the requirements of the statute. The jurisprudence noted above, in particular previous decisions of this court and the Court of Appeal, sets a great deal of importance to the principle of equity in taxation.

Consequently, a reasonable approach would have been to adjust the assessed value following consideration of whether, in light of the evidence submitted by the Taxpayer, there was an acceptable level of uniformity in the assessed values of residential properties in the municipality.

Conversely, the failure to address uniformity, which underlies the important value of equity in the municipal taxation system, means that, in my view, the decision was unreasonable. [ 59 ] In reviewing such a decision, I am also obligated, should I find some gap in reasoning, to determine whether, from the evidence submitted, the conduct of the hearing generally, and the decision itself, I can find a rationale that has not been articulated specifically. In reviewing this case, there is no basis for finding such a rationale, because no evidence was presented to the Commissioner to suggest a different outcome.

In addition, while the Commissioner articulated the appropriate principles, and acknowledged the submissions of the Applicant, he did not provide any indication either that he considered the uniformity principle in choosing the one-comparator property, or that he felt the comparator property reflected the value of like properties in the municipality. His decision to focus on one property on the same street was to the exclusion of consideration of the broader issue of uniformity with other properties.

For this reason, I do not believe I can supplement his reasons. [ 60 ] Accordingly, I find the decision of the Commissioner was unreasonable, in that he did not address the issue of uniformity of the subject property assessment with other properties in the municipality generally. The result is that I will vacate the decision to set the assessment, and refer the matter back to the Commissioner.

The Commissioner should reconsider the submission of the Applicant in light of section 17(3) of the Act , he should first, address the actual value, or market value, of the subject property, and second, address the issue of whether the resulting value is reflective of uniformity with similar properties in the municipality. This means going beyond simply the adjacent properties on the same street, but will require some analysis of whether rough uniformity has been established so that the taxation burden is shared equitably among the taxpayers in the municipality.

To that end, the Commissioner may use his authority under

section 35 of the Act to require the MAA to present evidence. Conclusion [ 61 ] The decision of the Review Commissioner, dated June 1, 2016, is vacated, and the matter is referred back to the Commissioner for reconsideration. The Commissioner is directed to specifically address the issues of actual value and uniformity as set out in section 17(3) of the Act . In addition, he may require the Municipal Assessment Agency to present evidence addressing the uniformity principle in respect of the municipality by using his powers under

section 35 of the Act . [ 62 ] As the successful party, the Applicant shall have his costs on column 3 of the Appendix to Rule 55 of the Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sch. D. _____________________________ Alphonsus E. Faour Justice