Lakewood Development Corporation Applicant And: Municipal Assessment Agency Inc. First Respondent And: Town Council of Town of Pouch Cove Second Respondent, 2023 NLSC 33

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Lakewood Development Corporation v. Municipal Assessment Agency Inc. , 2023 NLSC 33 Date : March 3 , 2023 Docket : 202201G0944 Between: Lakewood Development Corporation Applicant And: Municipal Assessment Agency Inc. First Respondent And: Town Council of Town of Pouch Cove Second Respondent Before: Justice Garrett A. Handrigan Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: January 19-20, 2023

Summary: Lakewood Development Corporation Inc. applied by Originating Application to quash actions and decisions taken by the Municipal

Assessment Agency Inc. and the Town Council of the Town of Pouch Cove affecting the municipal taxes that Lakewood either paid or owed to the Town. It sought judicial review of their actions and decisions and orders in the nature of certiorari to quash them and mandamus and restitution to recover taxes already paid. The Court dismissed the Originating Application and ordered Lakewood to pay costs. Appearances: Michael J. Crosbie, K.C. Appearing on behalf of the Applicant Daniel M. Glover Appearing on behalf of the First Respondent Giles W.

Ayers Appearing on behalf of the Second Respondent Authorities Cited: CASES CONSIDERED: Quigley v. Torbay (Town) , 2010 NLCA 3 ; Al-Ghamdi v. Alberta , 2017 ABQB 684 ; C.B. Powell Ltd. v. Canada (Border Services Agency) , 2010 FCA 61 ; Catalyst Paper Corp. v. North Cowichan (District) , 2012 SCC 2 ; Nanaimo (City) v. Rascal Trucking Ltd. , 2000 SCC 13 ; 66202 Newfoundland and Labrador Inc. v. Municipal Assessment Agency , 2019 NLCA 1 ; Lakewood Development Corporation v. Pouch Cove (Town) , 2022 NLSC 134 ; Canada ( Minister of Citizenship and Immigration) v.

Vavilov , 2019 SCC 65 ; Marystown (Town) v. 55104 Newfoundland and Labrador Inc. , 2011 NLTD(G) 15; Newfoundland and Labrador (Royal Newfoundland Constabulary Chief) v. Newfoundland and Labrador (Royal Newfoundland Constabulary Public Complaints Commissioner) , 2014 NLTD(G) 80; Housen v. Nikolaisen , 2002 SCC 33 STATUTES CONSIDERED: Assessment Act, 2006 , S.N.L. 2006, c. A-18.1 ; Municipalities Act, 1999 , S.N.L. 1999 c M-24 RULES CONSIDERED: Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sch.

D REASONS FOR JUDGMENT Handrigan, J. : INTRODUCTION [ 1 ] On March 7, 2022, Lakewood Development Corporation Inc. (“Lakewood”) filed an Originating Application in this Court naming the Municipal Assessment Agency Inc. (“Agency”) as First Respondent and the Town Council of the Town of Pouch Cove (“Town”) as Second Respondent.

Lakewood asked the Court to review tax assessments, tax actions and decisions that one or the other of the Respondents took over various years, ranging from 2014 to 2022 and it sought orders quashing them. [ 2 ] As well, Lakewood sought orders directing the Town to repay “all property and business taxes” it collected in those years or to otherwise declare what property and business taxes Lakewood was responsible to the Town for.

Finally, it sought an order that the Respondents pay “solicitor and client costs…because of the Respondents’ reprehensible and unlawful conduct that necessitated this Application” (para. 2 of the Originating Application). [ 3 ] More specifically, Lakewood framed its Application as a “judicial review” of the Respondents’ actions so that it sought orders in the nature of certiorari to quash their actions and orders based on “restitution principles and mandamus ” directing the Town to repay taxes that Lakewood says the Town “unlawfully collected” (para. 115 of the Originating Application).

[ 4 ] I heard the Originating Application over two days, on January 19 & 20, 2023 and reserved my judgment until now. the issues [ 5 ] Lakewood’s Application raises these issues: 1. What is the standard of review? 2. Is Lakewood entitled to certiorari to quash taxation assessments, decisions and actions that the Agency and the Town took for taxation years 2014-2019? 3. Is Lakewood entitled to declaratory orders as to what taxes, if any, it owes to the Town for any of the years from 2014-2022 inclusive? 4.

Is Lakewood entitled to orders based on restitution principles or in the nature of mandamus directing the Town to repay any taxes it collected from Lakewood from 2014-2022 inclusive? 5. Is Lakewood entitled to solicitor and client costs? the law Statute – Rules of the Supreme Court, 1986 [ 6 ] Lakewood applies under Rule 54 of the Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sch. D (the “ Rules ”). It provides as relevant here: … 54.02.

(1) An order in the nature of mandamus …[and] certiorari … may be granted by the Court upon an originating application. … I. Certiorari 54.06. An originating application for an order in the nature of certiorari shall be filed and served within a reasonable time after the date of ... (

b) issuing of the order or award; … to which it relates. … 54.08.

(1) Upon receiving an originating application … (for certiorari), the … tribunal, shall return forthwith to the Court the order …,

together with the process commencing the proceeding, the evidence and all exhibits filed, if any, and all other things in the proceeding,together with the originating application served upon him or her, with a certificate endorsed thereon … [in the form specified in the Rule] … III. Mandamus 5 4.15. An order in the nature of mandamus shall not be made unless it is supported by an affidavit of a person who deposes that theapplication is made at that person's instance as prosecutor, and that person's name appears as the person at whose instance theapplication is made.

Case Law – Certiorari & Mandamus [7] In Quigley v. Torbay (Town), 2010 NLCA 3, Cameron J.A. (with Rowe J.A., as he then was, and Harrington J.A. concurring)upheld a trial judge’s decision to dismiss an application for certiorari and mandamus. At paragraphs 14 to 16, Justice Cameron had thisto say about the “discretionary” nature of certiorari and mandamus and about asking for certiorari if the applicant had an alternativeremedy available to it, of which it had not yet availed: 14 Certiorari and mandamus are discretionary remedies: Harelkin v. University of Regina, (SCC), [1979] 2 S.C.R.561 (S.C.C.).

As Beetz J. noted in Harelkin (p. 575): “Over the years, the courts have elaborated various criteria which provide guidanceas to how the discretion should be exercised.” The factors which are considered in determining whether an applicant should be permittedto proceed by way of certorari include: the convenience of the alternative remedy, the nature of the error, and the nature of the appellatebody. The factors are, however, not closed. The courts in particular circumstances isolate and balance the factors which are relevant:Canadian Pacific Ltd. v.

Matsqui Indian Band, (SCC), [1995] 1 S.C.R. 3 (S.C.C.) at para. 37. 15 The general rule is that an application for certiorari will not be entertained where there is an adequate alternative remedy. Theburden is upon the person who seeks one of the prerogative remedies - discretionary remedies of last resort - to satisfy the court thatthere is no adequate alternative remedy: Kingsbury v. Heighton, 2003 NSCA 80 (N.S. C.A.), para. 102. 16 Where the alternative remedy is a right of appeal to a court, usually the court will decline to exercise the discretion to grant aprerogative remedy.

This is true even though the time for appeal may have expired or leave to appeal may have been denied. The samereasoning would apply where an appeal had been discontinued. [emphasis added] [8] While, Cameron J.A., noted in paragraph 17 that “…the courts have preserved the right to depart from the general rules inspecial circumstances”, she was also satisfied that there was “…nothing demonstrating special circumstances in this case…” (para. 18). Alternative Remedy – Statute [9] Sections 30 (1), 33 and 39 of the Assessment Act, 2006, S.N.L. 2006, c. A-18.1 (the “Assessment Act”), provide for appeals ofassessments.

They read, as relevant here: 30.

(1) A party objecting to or complaining of an omission from or an error in a roll may personally or by agent, serve notice of appeal tothe city clerk or the director within 60 days from the date of the notice of assessment. … 33. At the time fixed for appeals the commissioner shall hear the appeals made in accordance with this Act. …

(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 all parties and to the Trial Division within 30 days after the mailing or delivery to that person of the decision of the commissioner. Alternative Remedy – Case Law [ 10 ] In Al-Ghamdi v. Alberta , 2017 ABQB 684 , Goss J., at paragraph 126, described it as an “… abuse of process to pursue judicial proceedings without first exhausting the administrative regime” [emphasis added].

Justice Goss then referred to paragraph 31 of C.B. Powell Ltd. v. Canada (Border Services Agency) , 2010 FCA 61 , from the Federal Court of Appeal to explain “this well-known principle”: Administrative law judgments and textbooks describe this rule in many ways: the doctrine of exhaustion, the doctrine of adequate alternative remedies, the doctrine against fragmentation or bifurcation of administrative proceedings, the rule against interlocutory judicial reviews and the objection against premature judicial reviews.

All of these express the same concept: absent exceptional circumstances, parties cannot proceed to the court system until the administrative process has run its course . This means that, absent exceptional circumstances, those who are dissatisfied with some matter arising in the ongoing administrative process must pursue all effective remedies that are available within that process; only when the administrative process has finished or when the administrative process affords no effective remedy can they proceed to court.

Put another way, absent exceptional circumstances, courts should not interfere with ongoing administrative processes until after they are completed, or until the available, effective remedies are exhausted. [emphasis added] Statute – Imposing Municipal Taxes [ 11 ]

Section 101 , 106 , 112 , 113 , 120 and 124 of the Municipalities Act , 1999 , S.N.L. 1999 c. M-24 (the “ Municipalities Act ”), provide as relevant here: 101.

(1) All taxes that may be imposed or varied by a council shall be imposed or varied by a resolution of that council before April 1 in the financial year in which the tax or tax variation is to be applied. … 106.

(1) Taxes imposed or varied by a council remain in effect and are due according to the nature of the tax and its method of payment until the resolution of the council imposing it has been cancelled. … 112.

(1) A council may impose an annual tax, to be known as "the real property tax", on the owners of real property within the municipality. … 113. The rate of tax imposed under

section 112 shall be (

a) fixed as a percentage of the assessed value of the real property as set down in the last assessment roll of the municipality prepared under the Assessment Act, 2006 ; and (

b) one that is estimated to be sufficient, together with the anticipated revenues from other sources, to cover the expenditures of the council to be made from current funds during the current financial year of the council . [emphasis added] …

(1) A council shall impose an annual tax, to be known as "the business tax", on all businesses carrying on business in the municipality. … 124. A council may vary the rate of business tax between different classes of businesses. Case Law – Imposing Taxes [ 12 ] In Catalyst Paper Corp. v. North Cowichan (District) , 2012 SCC 2 , the Supreme Court of Canada considered the standard for a court reviewing a council’s actions on imposing taxes.

McLachlin C.J., at paragraph 16, noted that “[t]he parties agree that the reasonableness standard [of review] applies in this case”; by which she meant “…whether the bylaw at issue is reasonable having regard to process and whether it falls within a range of possible reasonable outcomes”. [ 13 ] At paragraph 19, McLachlin C.J. then offered these observations on how courts should apply that standard when reviewing the decisions of municipal corporations: The case law suggests that review of municipal bylaws must reflect the broad discretion provincial legislators have traditionally accorded to municipalities engaged in delegated legislation.

Municipal councillors passing bylaws fulfill a task that affects their community as a whole and is legislative rather than adjudicative in nature. Bylaws are not quasi-judicial decisions. Rather, they involve an array of social, economic, political, and other non-legal considerations. “Municipal governments are democratic institutions”, per LeBel J. for the majority in Pacific National Investments Ltd. v. Victoria (City) , 2000 SCC 64 , [2000] 2 S.C.R. 919, at para. 33 .

In this context, reasonableness means courts must respect the responsibility of elected representatives to serve the people who elected them and to whom they are ultimately accountable”. [emphasis added] [ 14 ] Catalyst Paper is particularly relevant to this matter because Catalyst was disputing a North Cowichan taxation by-law that it considered to be especially burdensome and decidedly unfair. At paragraph 4, McLachlin C. J. summarized Catalyst’s reaction to the by- law this way: Catalyst, not surprisingly, was unhappy with this state of affairs.

Not only is it required to foot a grossly disproportionate part of the District’s property tax levy, it obtains little in exchange in terms of services. It has its own sewer and water systems, and its own deep- sea port. Exacerbating the situation is the fact that in recent years, Catalyst’s operation has been losing money. Catalyst cannot pick up its operation and move elsewhere. Its choices are to stay and pay, or to close the mill. [ 15 ] McLachlin C.

J., at paragraph 32, stated the inquiry for the court this way: “To summarize, the ultimate question is whether the taxation bylaw falls within a reasonable range of outcomes”. She decided that the bylaw was reasonable, and she explained her analysis at paragraphs 33-35: 33 I turn first to process. Catalyst does not allege that the voting procedures of the District were incorrect; nor does it allege bad faith.

Its contention is rather that the District’s process is flawed because it provided neither formal reasons for the bylaw, nor a rational basis (viewed in terms of Catalyst’s “Consumption of Services Model”) for its decision. This contention cannot succeed. As discussed above, municipal councils are not required to give formal reasons or lay out a rational basis for bylaws. In any event, as the trial judge found, the reasons for the bylaw at issue here were clear to everyone. The District’s policy had been laid out in a five-year plan.

Discussions and correspondence between the District and Catalyst left little doubt as to the reasons for the bylaw. The trial judge found that the District Council considered and weighed all relevant factors in making its decision. If Catalyst has a complaint, it is not with the procedures followed, but with the substance of the bylaw. 34 This brings us to the content of the bylaw at issue. There can be no doubt that the impact of the bylaw on Catalyst is harsh .

The ratio between major industrial rates and residential rates imposed is among the highest in British Columbia (only two municipalities exceed it) and far outside the pre-1983 norm. In Catalyst’s present economic situation, the consequences are serious - indeed, Catalyst suggests that the industrial rate threatens the continued operation of its mill in the District. 35 However, countervailing considerations exist - considerations that the District Council was entitled to take into account.

The Council was entitled to consider the impact on long-term fixed-income residents that a precipitous hike in residential property taxes might produce. The Council has decided to reject a dramatic increase and gradually work toward greater equalization of tax rates between Class 4 major industrial property owners and Class 1 residential property owners. Acknowledging that the rates from Class 4 are higher than they should be, the Council is working over a period of years toward the goal of more equitable sharing of the tax burden.

Its approach complies with the Community Charter , which permits municipalities to apply different tax rates to different classes of property. Specifically, nothing in the Community Charter requires the District to apply anything like Catalyst’s “Consumption of Services Model”. Indeed, the compelling submission made by Mr. Manhas, counsel for the Respondent, was that it would be “statutorily ultra vires for the [municipality] to impose property value taxes on the basis of consumption alone under section 197(3)(b)” (transcript, at p. 54). The bylaw favours residential property owners, to be sure.

But it is not unreasonably partial to them.

[emphasis added] [ 16 ] The Supreme Court of Canada also acknowledged, at paragraph 35, the deference that courts must observe when reviewing municipal council decisions in Nanaimo (City) v. Rascal Trucking Ltd. , 2000 SCC 13 ; and it offered this rationale for that deference: … Municipal councillors are elected by the constituents they represent and as such are more conversant with the exigencies of their community than are the courts. The fact that municipal councils are elected representatives of their community, and accountable to their constituents, is relevant in scrutinizing intra vires decisions.

The reality that municipalities often balance complex and divergent interests in arriving at decisions in the public interest is of similar importance. In short, these considerations warrant that the intra vires decision of municipalities be reviewed upon a deferential standard . [emphasis added] Statute – Assessing Municipal Property [ 17 ] Sections 3, 19 and 24 of the Assessment Act are, as relevant here: 3.

(1) Where a tax is imposed on real property by the city or a council, all the real property in the city or a municipality, whether or not it is subject to taxation, shall be assessed in accordance with this Act, but if the real property is not assessed the failure to assess that real property does not affect the validity of the assessment of the remaining real property in the city or a municipality. … 19. For taxation purposes, an assessment or reassessment of real property shall be effective (

a) one year after the base date for real property located in a municipality; and (b) 2 years after the base date for real property located in the city. … 24.

(1) Following the completion of a roll, an assessor shall, where it is considered necessary to do so by the director or manager, make a supplementary assessment with respect to real property where, since the completion of the roll, [if one or more of six events listed in paragraphs 24 (1) (a) – (

f) have occurred]. [emphasis added] … [ 18 ] I set out the sections of the Assessment Act that relate to appealing assessments earlier in these reasons and I need not repeat them here. Case Law – Assessing Municipal Property [ 19 ] In 66202 Newfoundland and Labrador Inc. v. Municipal Assessment Agency , 2019 NLCA 1 , 66202 Newfoundland and Labrador Inc. (“66202 Newfoundland”) owned and operated Mountain View Retirement Centre in the City of Corner Brook.

The Municipal Assessment Agency assessed the centre as a personal care retirement home by which the City would tax it as a business. 66202 Newfoundland thought the centre should be classified as a residential property and appealed the assessment under

section 30 of the Assessment Act to a judge of this Court. [ 20 ] Hurley J., then of this Court, found that the assessment commissioner made a factual determination which was supported by the evidence, and he dismissed the appeal. Welsh J.A. of our Court of Appeal, at paragraph 32, dismissed the appeal to that Court by finding that Hurley J. was correct to conclude …. “that there is no basis on which to conclude that the [assessment] commissioner erred in law or

jurisdiction regarding application of the uniformity principle or the method of assessing the property”. [ 21 ] This is the law I will apply to the issues I stated earlier. I turn now to analyze those issues, starting with the background to them. Analysis Background [ 22 ] Lakewood owns Marine Park, a 142-hectare (approx. 363 acres) RV Campground, at 421-549 Pouch Cove Line, in the Town of Pouch Cove. The Province of Newfoundland opened Marine Park as a day-use facility in 1981. Lakewood was formed in 1997 to lease the property from the Province and it took a 5-year lease of the facility at that time.

The Province renewed the lease in 2002 and 2007, for a further 5 years each time and then extended it to a 50-year lease in 2016. [ 23 ] Before the Province actually leased the Park to Lakewood for 50 years, it had already contacted Lakewood by letter dated August 3, 2015 and advised of changes “…associated with the management and allocation of de-proclaimed provincial parklands.

These changes will allow current operators of de-proclaimed parks the opportunity, to purchase (Crown Grant) all or a portion of the eligible Crown lands, at market value, currently held under a lease or licence to occupy” (Letter dated August 3, 2015, Tab 12B of Record (First Respondent)). [ 24 ] Lakewood was interested in acquiring the freehold of the property and it advised the Province of its interest. Over the next couple of years, Lakewood and the Province negotiated the purchase price that Lakewood would pay for it.

Those negotiations culminated in a letter from the Province to Lakewood on September 17, 2018 advising that it was willing to accept “$690,000 + HST” to complete the sale. [ 25 ] Evidently, the Province had set the price at “$765,000 + HST” earlier but then “revised” it down because of “concerns” Lakewood expressed to the Province’s representatives when they made “[a] site visit…[to] your property on June 21, 2018” (Letter dated September 17, 2018, Tab 5 of Lakewood’s Originating Application).

Lakewood accepted the revised price and the Province issued Crown Grant No. 54519 (Pursuant to Lease 110676) to Lakewood on December 13, 2018. [ 26 ] Lakewood has aggressively developed Marine Park since it first gained access to the property in 1997, particularly in the last two decades. In paragraph 6 of the affidavit that Don Hearn, Executive Director and CEO of the Agency, filed in this matter on August 31, 2022, he provides the numbers of developed campsites at strategic points in time, showing an exponential growth in their numbers from 50 on August 6, 2006, to 400 by February, 2021. [ 27 ] Mr.

Hearn also provides seven other intervening, reference dates, each confirming the advances Lakewood made in its development of the Park. Mr. Hearn relied on “[p]hotographs and satellite images provided by the Town of Pouch Cove and the owner of the Subject Property” for his data (Mr. Hearn’s affidavit, referred to in the preceding paragraph). [ 28 ] Lakewood has equipped 300 or more of its campsites for use as all-season facilities and approximately 20 of them are occupied full-time.

Full-time occupancy at Marine Park rankled the Town and it wanted to restrict the Park’s usage to the traditional “camping” seasons, from the spring to the fall. The Town claimed that it was concerned about its ability to offer Fire Protection and Emergency Services at the Park, among other things. [ 29 ] In Spring, 2020, at the beginning of the pandemic, the Province’s Chief Medical Officer of Health, Dr. Janice Fitzgerald granted Lakewood an exemption so that 20 permanent resident families could continue to live in Marine Park.

This prompted Brian Peach, the Town’s CAO to write to Lakewood by email on April 22, 2020: “From the Town’s perspective, I have been reflecting on this concept of permanent families residing in the park as their permanent primary residence (like citizens, not tourists), which is beyond the scope of permissible uses for the park and will not be something that can continue following the pandemic” (Tab 8 of the Originating Application). [ 30 ] The Town followed up on Mr.

Peach’s email by issuing a “Business Permit Commercial Recreation Park” under which it restricted Lakewood to opening Marine Park between May 1 to October 31 annually, thereby eliminating all-season camping. Lakewood challenged the Town’s ban on all-season camping in this Court and MacDonald J. found on September 1, 2022, that Lakewood has “…a non-conforming use under the Town’s applicable regulatory framework” (at para. 117 of Lakewood Development Corporation v.

Pouch Cove (Town) , 2022 NLSC 134 ), so that all-season camping could continue. [ 31 ] Aside from campsites, Lakewood offers other services on site, mostly complementary to its main line of business; it has, for example, a general store, a recreation building, a shower building, a snack bar, and a propane station; and it also sells recreational vehicles, pizzas (by Greco Pizza), alcohol products (through a Newfoundland Liquor Express) and some Husqvarna products (in its general store). [ 32 ] While Lakewood has been at odds with the Town over its use and occupancy of Marine Park, it is even more agitated about how the Town taxes the Park; and its agitation goes back to 2014 and also extends to how the Agency assesses its property for taxation. [ 33 ] This is how Lakewood states in its Originating Application that its dissatisfaction with the Town’s taxing structure began in 2014 and developed over the ensuing years: 15.

Commencing in or about 2014, Lakewood began to object to its RV Park/Campground and Retail uses of its Property being subject to a higher tax rate (mil rate) than other businesses operating in the Town. For example, in the Tax Year 2014 Lakewood’s Property under the Parks tax class was subject to a mil rate of 70 mils when the General Business mil rate was 14 mils, and in the tax years 2016 and 2017 Lakewood’s Property under the Parks tax class was subject to a mil rate of 20 mils when the General Business mil rate was 14 mils.

Under this 2014 and 2016-17 taxation other businesses, lessors and retail premises in the Town were subject to the 14 mils mil rate when Lakewood’s park recreational leasing activity and retail premises were respectively subject to a 70 mil rate and a 20 mil rate.

16. As a result of what Lakewood considered to be unfair taxation, Lakewood ceased paying its municipal taxes in full and Lakewood strongly objected to its business being taxed at a higher rate than other general and leasing businesses in the Town and objected to its retail business being taxed at a higher rate than other retail businesses with which Lakewood was in competition. [ 34 ] Between 2014 and 2019, the Town levied approximately $134,817.87 taxes on Lakewood, for property and business taxes.

Lakewood, as it noted in its Originating Application, stopped paying its taxes in full, so that by March 31, 2019 (including the 2019 taxes), the Town claimed that Lakewood owed it $98,823.34, for outstanding taxes and interest on arrears at 1% per month. [ 35 ] In the meantime, Lakewood and the Town were discussing the arrears, including interest and on March 6, 2019, Brian Peach, the Town’s CAO sent an email to Lakewood advising that the Town Council had approved a “Town-wide policy” at a recent public meeting to deal with “7.

Outstanding Arrears One-Time Interest Exemption (2018 Taxes and Prior) ”. [emphasis in original] [ 36 ] In the result, the Town eventually offered and Lakewood agreed with the Town to “establish a payment plan…to bring my associated tax accounts current and have my outstanding interest exempted”. Brian Peach signed the “payment plan” for the Town on March 7, 2019 and David Snow signed it for Lakewood on the same date. By the payment plan, Lakewood agreed to pay the Town $62,548.83 in 7 instalments starting March 7, 2019, and ending the “…last Monday in November 2019”; and Lakewood fulfilled its bargain.

The Town wrote off the accumulated interest on the arrears (all discussion of the “payment plan” is based on the documents Lakewood attached as

Schedule 4 of its Originating Application). [ 37 ] There is an interesting footnote to the payment plan: Brian Peach, who did the calculations on which the plan was based, made a mistake in them and realized after he and Mr. Snow signed the plan that Lakewood still owed the Town $922.96. He contacted Lakewood and explained his error and asked Lakewood to pay the amount. Lakewood refused, as Mr. Peach explained in an affidavit he filed in this matter on August 31, 2022: 10. After the agreement was signed, I later determined that I miscalculated the amount outstanding and that Lakewood still owed $922.96. 11.

Lakewood contended that this amount was not recoverable because of the agreement… 12. In reliance on the agreement and Lakewood’s position, Council eventually agreed with Lakewood’s position. [ 38 ] The Town calls the payment plan a “settlement agreement” between it and Lakewood and it says that the plan bars Lakewood’s restitutionary claim for the taxes it collected between 2014 and 2019.

Lakewood denies that the payment plan was a settlement agreement; it says that the Town was threatening Lakewood at the time to take enforcement proceedings; and it claims that it signed the plan without receiving independent legal advice. [ 39 ] I will return to the relevance of Lakewood’s compromise with the Town and the payment plan later in these reasons.

I turn now to review the period of 2020-2022, which was an even more contentious time between the Town and Lakewood. [ 40 ] The Town assessed Lakewood $1,161,300.00 for business occupancy ($603,500.00 for land and $557,800.00 for buildings) for 2020, based on assessments that the Agency did in 2019, which Lakewood accepted. For 2021, the amounts were $1,113,400.00 and $668,400.00 respectively, based on assessments the Agency did in 2020, which Lakewood also accepted. [ 41 ] However, on December 14, 2020, the Agency issued four Notices of Supplementary Assessment to Lakewood for the 2020 and 2021 taxation years.

The values the Agency assigned to Lakewood’s Property increased substantially with the Supplementary Assessments but these assessments also subdivided Lakewood’s Property into three parcels. One of the four Notices of Supplementary Assessment was for the whole of the park property and the other three were for the parcels that were created by subdividing the property. [ 42 ] This is how Lakewood explained the impact of the Supplementary Assessments for the 2020 and 2021 taxation years in its Originating Application: 38.

For Tax Year 2020 (with a base date of January 1, 2017), Lakewood was Supplementary Assessed in the amount of $1,777,400 for business realty and Lakewood received 3 business occupancy (business tenant) Notices of Supplementary Assessment… These 3 business occupancy Notices of Supplementary Assessment were in the amounts $978,636; $138,282; and $279,230… 39.

For Tax Year 2021 (with a base date of January 1, 2020), Lakewood was Supplementary Assessed in the amount of $1,794,000 for business realty and Lakewood received 3 business occupancy (business tenant) Notices of Supplementary Assessment… These 3 business occupancy Notice of Supplementary Assessment were in the amounts of $987,776, $1309,573 and $281,837… [ 43 ] The Notices of Assessment that Lakewood received for the 2022 taxation year were identical to the Notices of Supplementary Assessment they received for 2021. [ 44 ] The Town is claiming $196,477.42 from Lakewood for 2020-2022 taxation years inclusive, which it calculates by applying the mil rates it adopted for its various taxes for those years to the values provided by the Supplementary Assessments.

For greater certainty, these are the mil rates the Town adopted and the categories of taxes to which they applied them, as relevant here:

Year Tax Mil Rate 2020 Property 5.25 mils General Business 14 mils 2021 Property 5.25 mils General Business 14 mils Commercial Recreation Park 70 mils 2022 Property 5.25 mils General Business 14 mils Commercial Recreation Park 70 mils [ 45 ] Lakewood contends that it should pay two rates of taxes for those three years, 5.25 mils for property taxes and 14 mils for General Business. It believes that Marine Park is primarily a residential property and that it should not have to pay a business occupancy tax.

Lakewood acknowledges that its warehouse and convenience store fit within the General Business classification and it agrees those properties should be taxed at 14 mils. [ 46 ] If Lakewood’s contention is accepted, it calculates a total tax for the same period of $29,171.53, or $170,306.39 less than the $196,477.42 the Town claims (see paragraphs 101-108 of Lakewood’s Originating Application).

To put this in context, Lakewood says that it should be liable to the Town for about 14% of the taxes the Town claims from it or put in reverse that the Town wants Lakewood to pay 86% more taxes than Lakewood agrees it should pay. [ 47 ] Lakewood is especially incensed about the Notices of Supplementary Assessment that it received from the Agency, first as to their impact on its tax liability, but also as to their timing, their vagueness, its uncertainty about how the Supplementary Assessments originated and then about how the Town applied them.

Thus, Lakewood challenged the assessments by filing Notices of Appeals against them under the Assessment Act . [ 48 ] It filed two Notices of Appeal, one for each of the Notices of Supplementary Assessment it received for 2020 and 2021. Both Notices of Appeal are dated and Lakewood filed them on February 1, 2021. Lakewood directed them to both the Business Realty and the Business Occupancy assessments.

It challenges the Notices of Supplementary Assessment on several grounds, including: • There is no statutory authority for them. • The properties are assessed in excess of their fair market values. • The assessments are inconsistent with assessment of other similar properties in the Town. • The park property is predominantly a residential and not a business use. [ 49 ] Lakewood asks the “Assessment Review Court” to whom it directed its Notices of Appeal, to reject the increases in value the Notices of Supplementary Assessment provide, to change the park property from business to residential and to limit the Business Realty assessments to the warehouse area and the convenience store (The Notices of Appeal appear under Tabs 6 & 7 of the Record (First Respondent)). [ 50 ] When Lakewood did not proceed with its Notices of Appeal by the end of 2021, Don Hearn, Executive Director and CEO of the Agency, sent an email to Lakewood’s solicitor on December 3, 2021 advising that “FYI, given that there has been no resolution to the following referenced appeals and in order to keep the process moving, the MAA will be forwarding the appeals to the assessment review commissioner for the Town of Pouch Cove” (Tab 2 of the Record (First Respondent)). [ 51 ] In paragraph 25 of the affidavit that Mr.

Hearn filed on August 31, 2022, he noted that Lakewood had filed this Originating Application challenging various actions of the Town and the Agency and stated that “[t]he appeals of the 2020 and 2021 Supplementary Assessments to the commissioner for Pouch Cove has been suspended pending the result of the within Originating Application ”. [emphasis added] [ 52 ] For its part, Lakewood claims that the “…2020 and 2021 Supplementary Assessment Appeals are… void and of no effect…” because they were not heard on or before March 15, 2021. Lakewood notes that

section 30 of the Assessment Act , requires appeals to be “…decided on or before March 15 in the year following delivery of the original notice of assessment, except with the agreement of the parties” (paras. 228 & 229 of the Applicant’s Brief of Fact and Law, filed November 9, 2022). Since both sets of Notices of Supplementary Assessment were dated December 14, 2020, the appeals from them must, says Lakewood, have been heard by March 15, 2021, unless the parties agreed otherwise; and they did not. [ 53 ] This is the background to the Originating Application.

I turn now to discuss the issues I stated earlier in these reasons against that background and by applying the law I stated above. Discussion Standard of Review [ 54 ] In 2019, the Supreme Court of Canada, at paragraph 1, used the “… opportunity to re-examine its approach to judicial review” that Canada ( Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 , and “its companion cases” provided. In particular, as stated at paragraph 2, the court “…address[ed] two key aspects of the current administrative law jurisprudence which require[d] reconsideration and clarification”:

…First, we will chart a new course forward for determining the standard of review that applies when a court reviews the merits of an administrative decision. Second, we will provide additional guidance for reviewing courts to follow when conducting reasonableness review…. [ 55 ] Vavilov starts with the presumption that reasonableness is the appropriate standard of review in all cases and derogates from that presumption only in exceptional cases or when there are clear variances.

Those exceptions include constitutional questions, general questions of law which are centrally important to the legal system, and questions that relate to jurisdictional boundaries between several administrative bodies (paragraph 17); none of which pertain here. [ 56 ] The presumption may also be displaced by variances such as statutory provisions, which state a standard of review other than reasonableness, or for matters that proceed as statutory appeals; again, neither of which applies here ( Vavilov , paras 17 and 33 ). [ 57 ] Overall, for present purposes, let me say that reasonableness is the appropriate standard of review in this case.

I look to Vavilov now for guidance on how to apply reasonableness to Lakewood’s Application. Paragraphs 12-15 pertain, confirming that appropriate deference is due to administrative bodies which apply it: 12 … Reasonableness review is methodologically distinct from correctness review.

It is informed by the need to respect the legislature’s choice to delegate decision-making authority to the administrative decision maker rather than to the reviewing court…. [R]easonableness review must entail a sensitive and respectful, but robust, evaluation of administrative decisions: …. 13 Reasonableness review is…meant to ensure that courts intervene in administrative matters only where it is truly necessary to do so in order to safeguard the legality, rationality and fairness of the administrative process.

It finds its starting point in the principle of judicial restraint and demonstrates a respect for the distinct role of administrative decision makers. However, it is not a “rubber- stamping” process or a means of sheltering administrative decision makers from accountability. It remains a robust form of review. 14 On the one hand, courts must recognize the legitimacy and authority of administrative decision makers within their proper spheres and adopt an appropriate posture of respect.

On the other hand, administrative decision makers must adopt a culture of justification and demonstrate that their exercise of delegated public power can be “justified to citizens in terms of rationality and fairness” … 15 In conducting a reasonableness review, a court must consider the outcome of the administrative decision in light of its underlying rationale in order to ensure that the decision as a whole is transparent, intelligible and justified.

What distinguishes reasonableness review from correctness review is that the court conducting a reasonableness review must focus on the decision the administrative decision maker actually made, including the justification offered for it, and not on the conclusion the court itself would have reached in the administrative decision maker’s place. [ 58 ] Lakewood challenges the Town’s actions on taxation, in particular and criticizes the Town’s performance in this and related activities.

It claims that the Town was operating administratively and it cites unfairness, unreasonableness, bad faith, partiality and inequity, all directed at Lakewood, as well as claiming that the Town acted ultra vires of its enabling legislation. [ 59 ] I note in passing and it will become more apparent later in these reasons that most, if not all of the Town’s actions that Lakewood complains of, were not administrative in nature, but legislative or quasi-legislative engagements.

As for the Agency, Lakewood might have been involved more fully with it had Lakewood carried through on appeals that it filed against the 2021 and 2022 Notices of Supplementary Assessment that the Agency issued; but Lakewood opted to file this Originating Application rather than carry its appeals forward, so that its association with the Agency was more clerical than adjudicative in nature. [ 60 ] To the extent, however, that any of the Town’s or Agency’s decisions were administrative processes, I will review them on the standard of reasonableness.

Taxation: 2014 to 2019 [ 61 ] As I noted above, Lakewood asks for certiorari to quash all taxation assessments, decisions and actions that the Agency and the Town undertook for taxation years 2014-2019; and then it seeks a restitutionary order and/or mandamus requiring the Town to repay the taxes it collected from Lakewood during those six years. [ 62 ] Lakewood claims generally that the taxes the Town imposed on it for that period were “improper” and it points to various factors to support its claim, including: • The Town classified Marine Park for some of those years as “Parks”, stating it as an exception to its General Business Class but Marine Park was the only business in that class. • The Town made discretionary taxing decisions that affected Lakewood disproportionately and it has not but should be required to account for them. • Marine Park is used predominantly for residential purposes and should be classified as a residential property. [ 63 ] The Town responded to each one of these claims.

It also referred to the payment plan that Lakewood and the Town signed in March 2019 for the arrears of taxes for those years which the Town calls a “settlement agreement”; and which the Town claims renders

Lakewood’s Originating Application an “abuse of process”. Let me examine each of these claims in its turn.

Marine Park’s Classification [ 64 ] For the years 2014-2019, the Town classified Marine Park for business tax purposes in “Parks”, as an exception to the “General Business” classification or simply assigned it to the “General Business” class: 2014 (“Parks”, 70 mils); 2015 (“General Business”, 10 mils); 2016 (“Parks”, 20 mils); 2017 (“Parks”, 20 mils); 2018 (“General Business”, 14 mils); and 2019 (“General Business”, 14 mils). [ 65 ] Lakewood’s primary complaint about the Town’s classification of Marine Park as an exception to “General Business” is that it puts the Park in a class of its own, since there are no comparable businesses in the Town that also fall into that class.

Lakewood points to

section 124 of the Municipalities Act which reads: “A council may vary the rate of business tax between different classes of business es ” [emphasis added]; and it says that it is beyond the taxing authority that the Province delegated to municipalities to impose a variable tax rate on a sub-class (of the “General Business” class) in which there is only one business. [ 66 ] I have encountered Lakewood’s argument before.

In Marystown (Town) v. 55104 Newfoundland and Labrador Inc. , 2011 NLTD(G) 15, Ocean Choice International operated the only fish plant in the Town of Marystown to which the Town assigned a mil rate of 100.5 for “fish plants”. Other businesses in Marystown were taxed at the same rate, but they were classified differently. As noted at paragraph 31 of Marystown , I dismissed Ocean Choice’s claim that the Town discriminated against it when it classified the fish plant separately and set a mil rate that applied only to the fish plant: … [I]t is irrelevant that Ocean Choice is the only business in its class.

Ocean Choice cannot compare the mil rate that the Town of Marystown charges to Fish Plants with the mil rate it charges to other business es , such as Rent-A-Car Offices (56.5 mils) or Department/Grocery Stores (20.5 mils) because

section 124 of the Municipalities Act , 1999 expressly authorizes the Town to differentiate between different classes of business. On the basis of the foregoing, I find that the Town of Marystown did not discriminate against Ocean Choice International. [ 67 ] Now the challenge that Lakewood makes in this matter is somewhat different than the claim that Ocean Choice made in the preceding matter: Lakewood focuses on the grammatical structure of

section 124 of the Municipalities Act and notes that the Legislature has pluralized the word “business es ”, thereby indicating its intention that where a municipality has only one kind of business operating within it, it can do no more than include it with all other businesses in the “General Business” classification; or as Lakewood puts it, you cannot have a class of “business es ” with only one business in it. [ 68 ] I do not accept Lakewood’s submission. Let me explain. In Newfoundland and Labrador (Royal Newfoundland Constabulary Chief) v.

Newfoundland and Labrador (Royal Newfoundland Constabulary Public Complaints Commissioner) , 2014 NLTD(G) 80, at paragraph 30, Faour J. of this Court, offered his view on a Court’s role in statutory

interpretation: … the role of the court is not to merely do a textual analysis of each individual section. It is appropriate to examine each provision in the context of the overall purpose of the legislation, and to determine how the provisions in question fit within the purpose of the legislative scheme. … [ 69 ] I deduce from Faour J.’s comments that it is not sufficient to simply do a “textual analysis of each individual section” as Lakewood appears to have done with

section 124 , but the

section must be examined in its context.

Section 124 appears in

Part V of the Municipalities Act, in the

Section entitled “Taxation”.

Section 120 compels all municipalities to impose a business tax on all businesses in the municipality and then

section 124 authorizes the municipality to impose a variable rate of taxes among those businesses. [ 70 ] Thus

section 124 confers a broad discretion to tax businesses variably. There are many municipalities that have one business of a kind within their boundaries. Marystown had one fish plant which Ocean Choice International owned and operated in Marystown ; some municipalities have one bank, others have one paper mill, or a single car rental depot. [ 71 ] It would constrain considerably the discretion that

section 124 confers on municipalities to impose variable rates of taxes, to limit their ability to select the tax rate they deem appropriate on a particular business, simply because it is one of a kind to them.

But Lakewood’s submission goes farther than that even: It says that a municipality may only exercise its discretion to except a business from the “General Business” class if there is more than one of a kind business within its boundaries; otherwise, a business belongs to the General Business class and the municipality must tax it at the rate that applies to all other businesses in that class, whether they are owned by small, marginal operators or large corporate entities. [ 72 ] This could lead to incongruous results.

For example, in its 2022 Fee Structure, the Town applied a 3 mil rate to “Agriculture, Forestry”, one of the exceptions to the “General Business” class. If there was only one business in that excepted class, its mil rate would increase to 14 mils.

Conversely, the Town would have to apply a 14-mil rate to “Commercial Recreation Park” (which Lakewood wants, of course), losing the substantial taxes that it expects to receive from Lakewood. [ 73 ] In those circumstances, the Town would have to increase the mil rate substantially for the “General Business” class, to avoid the deleterious impact on its tax base, affecting all the others in the “General Business”, either positively or negatively. Therein lies the problem:

Section 124 of the Municipalities Act as worded, provides municipalities with the flexibility they need to set tax rates for all businesses within their boundaries as they deem appropriate. That is the prerogative that the Provincial Legislature has delegated to municipalities and it should not be limited. [ 74 ] Otherwise, if I accept what Lakewood would likely contend to be the proper grammatical construction of

section 124, to allow the Town to achieve what it wants, it changes nothing within the meaning of the section. Presently

section 124 reads, “A council may vary the rate of business tax between different classes of businesses”; but Lakewood, I expect, would have it read, “A council may vary the rate of business tax between different classes of business”. A plural “businesses”, or a singular “business” does not change the meaning of the section, because

section 124 focuses on the noun “classes” and not on the prepositional phrase (whether “of businesses” or “of business”) which modifies it.

[ 75 ] For these reasons, I reject Lakewood’s submission that the Town erred when it classified Marine Park in “Commercial Recreations Parks”, as an exception to the General Business classification. The Town’s Discretionary Taxing Decisions [ 76 ] Lakewood criticizes the Town’s taxing decisions heavily. These are some of the criticisms it directed to the Town in the Originating Application and the Brief of Fact and Law that it filed in this matter.

From the Originating Application [ 77 ] In paragraph 94 of its Originating Application, Lakewood argues that the Town made discretionary decisions about the mil rate that it applied to Lakewood and how it would classify its business, while blithely ignoring how little Lakewood uses municipal services. In paragraph 95, Lakewood notes that “[p]rinciples of procedural fairness require that Town discretionary decisions be explained and be rational.

No such explanation and rationality was provided concerning the Fee Structures in 2014, 2016 and 2017”. [emphasis added] From the Brief of Fact and Law [ 78 ] In paragraph 238 of its Brief, Lakewood claims that the campground “…should have been subject only to residential property tax at the residential mil rate because the campground is ‘residential property’”. It bases its submission on its belief that the Town failed to pass a “valid Resolution/Bylaw” to designate the campground as a “business”.

Lakewood ignores that it was the Agency which assessed the campground as a business and issued the Notices of Supplemental Assessments that the Town worked from when it imposed the business occupancy tax on Lakewood, as when it taxed the three divisions into which the Agency subdivided Lakewood’s Property. [ 79 ] When it challenges the Town’s decisions as being unfair and unreasonable, as well as in bad faith and in some respects even ultra vires of its enabling legislation, Lakewood treats the Town as an administrative body, and it views the Town’s actions as bearing judicial review.

Earlier in these reasons, I quoted McLachlin C.J. at paragraph 19 from Catalyst Paper about the nature of the actions that municipalities take when they pass bylaws, as they do when they impose taxes: … Municipal councillors passing bylaws fulfill a task that affects their community as a whole and is legislative rather than adjudicative in nature. Bylaws are not quasi-judicial decisions .

Rather, they involve an array of social, economic, political, and other non-legal considerations. … [emphasis added] [ 80 ] Equally important to the validity of the Town’s taxing decisions is the deference that municipal councils are due because of those legislative functions. Apropos of this deference are these comments from Major J. of the Supreme Court of Canada in Nanaimo at paragraph 35, again as I quoted earlier in these reasons: … The fact that municipal councils are elected representatives of their community, and accountable to their constituents, is relevant in scrutinizing intra vires decisions.

The reality that municipalities often balance complex and divergent interests in arriving at decisions in the public interest is of similar importance. In short, these considerations warrant that the intra vires decision of municipalities be reviewed upon a deferential standard. [ 81 ] In this case, Lakewood is demanding too much from the Town. It appears by Lakewood’s submission that it believed that the Town was required to consult with Lakewood before undertaking any of its taxing decisions that might affect it. The Town had no such obligation, of course.

Lakewood is one taxpayer in the Town, and it has no greater claim than any other taxpayer on the time and attention that the Town must afford it. The Town is obliged to, as Major J. said in Nanaimo , “often balance complex and divergent interests in arriving at decisions in the public interest”. Lakewood can command no more than that from the Town and when it insists on the deference and accountability that it demands here, Lakewood overreaches.

Marine Park – Residential or Business Occupancy [ 82 ] The Town classifies Marine Park as a business, excepted from the General Business classification as a “Commercial Recreation Park”. Lakewood disputes that classification determinedly. It relies primarily on the definition of “residential property” in

section 2 (

u) of the Assessment Act : … (u) "residential property" means real property that is used or designated for use as a domestic establishment [1] in which one or more persons usually sleep and prepare and serve meals and includes land or buildings that are appurtenant to the real property; … [ 83 ] Lakewood also refers to the

definitions of “commercial property” in

section 2 (

l) of the Assessment Act and of “business” in

section 2(

c) of the Municipalities Act which it says, when “…read together make a clear distinction between residential property and commercial property”. I will not repeat the other

definitions here, which are of ancillary concern only since my focus will be on the definition of “residential property”, on which the Lakewood stakes its argument. [ 84 ] Lakewood claims that it is self-evident that most of its campground falls squarely within that definition and should be classified as such. It notes for example that the campers it hosts, “usually sleep and prepare and serve meals” in their recreational vehicles, which

are “appurtenant to the real property”. Lakewood describes the campers as “tenants” and holds itself out as their “landlord”. [ 85 ] While the tenants that Lakewood hosts in Marine Park may “reside” there when they are on site and undertake the usual activities associated with residential abodes, they are merely Lakewood’s paying guests, with access to the camp sites for defined periods, whether seasonally or all-year around, as in some cases. [ 86 ] Lakewood as corporate landlord/owner neither “resides” there nor undertakes any of the other activities that would confer a residential character on the property.

Lakewood operates a “business” and its tenants pay for the use of its business assets on the terms that Lakewood stipulates in its “All Season Site” or “Summer Season Site” leases. [ 87 ] On December 28, 2020, Bruce Snow of Lakewood sent an email to Michael Schwartz, an assessor with the Agency. In his email, Mr. Snow was concerned about a nearby waste disposal site that was affecting Lakewood’s ability to develop in the area of it. Evidently, the Provincial Government was looking to restrict Lakewood’s development in that area and Mr. Snow believed Mr.

Schwartz should consider it when assessing the property’s value. [ 88 ] This portion of Mr. Snow’s email, which Lakewood included under Tab 15 to its Originating Application, describes how heavily Lakewood is invested in the “business” of Marine Park: You can see below that although we took over Marine Drive Provincial Park in 1997 and have been running it as campground and day- beach business ever since, in 2020 thee Town of Pouch Cove said they want us to present them with a business plan so they can determine if they are going to “authorize park activities”.

This is after millions of dollars, and 23 years in building the business . [emphasis added] [ 89 ] Mr. Snow sent another email to Brian Peach, CAO of Lakewood on December 18, 2020, about the then recent reassessment of Marine Park and the concomitant increase in Lakewood’s taxes because of the higher property values.

He noted, “I would suggest that you get a head start on some media talking points if you are going to find a way to make this look like anything other than a vile and vicious attack on a small business to stay afloat in the middle of a global pandemic”. [emphasis added] (Tab 17 to the Originating Application) [ 90 ] Finally, in this vein, I note an email that Lakewood’s counsel sent to Mr. Peach on July 15, 2020, about a requirement from the Town that Lakewood apply for a “Business Permit”.

Counsel wrote: “Lakewood has been in business operating a campground and trailer park in the Town since 1997” (Tab 20 of the Originating Application); [emphasis added].

It is true that Lakewood is in business, and it is axiomatic that its assets, principally its 142-hectare (approx. 363 acres) RV Campground are business assets, not residential properties. [ 91 ] 66202 Newfoundland , that I referred to earlier in these reasons provides a useful comparator for the character of Lakewood’s RV Campground. 66202 Newfoundland owned and operated Mountain View Retirement Centre, a personal care retirement home, in the City of Corner Brook.

The Municipal Assessment Agency assessed the Centre as a business property. 66202 Newfoundland thought the centre should be classified as a residential property and appealed the assessment to a judge of this Court under

section 30 of the Assessment Act . [ 92 ] Hurley J. then of this Court, found that the assessment commissioner made a factual determination which was supported by the evidence and dismissed the appeal.

Welsh J.A. of our Court of Appeal, at paragraph 32, dismissed the appeal to that Court by finding that Hurley J. was correct to conclude “…that there is no basis on which to conclude that the [assessment] commissioner erred in law or jurisdiction regarding application of the uniformity principle or the method of assessing the Property”. [emphasis added] [ 93 ] In the Notice of Appeal that 66202 Newfoundland filed in this Court, it claimed at paragraph 5 that the Centre was “… 95%+ a retirement home. The rooms are the homes of the residents through rental. It should be accordingly assessed”.

This is the submission that 66202 Newfoundland made to the Assessment Review Commissioner and to this Court: “… [T]he primary purpose of its business is to provide accommodations in the form of ‘rental units’ to senior citizens and that these rental units comprise 95 percent of the property. These units or rooms occupied by the residents are their homes through a rental arrangement.

Therefore, it is the position of 66202 Newfoundland that the personal care home is basically residential property that should not attract business tax”. (para. 27) [ 94 ] Hurley J. dismissed 66202 Newfoundland’s submission, albeit on the law and not on the facts: “In my opinion, the Commissioner, in concluding that Mountain View Retirement Center was not residential property and that it conducted and operated a business on its property, was making a finding on the facts put forward at the hearing. As was stated in Housen v.

Nikolaisen , 2002 SCC 33 at paragraph 26 , ‘factual findings or inferences require making a conclusion of fact based on a set of facts’. Questions and subsequently conclusions based on fact are not subject to appeal under subsection 39(3) of the Assessment Act ”. [ 95 ] The parallels between 66202 Newfoundland and this matter are too obvious to need elaboration. However, Lakewood dismisses 66202 Newfoundland as having no persuasive value to assist in deciding whether Marine Park is a business or residential property.

It does that by simply noting that Hurley J. deferred to a finding of fact that the Assessment Review Commissioner made when 66202 Newfoundland appealed to him from the Agency’s assessment. [ 96 ] I note two things about the precedential value of 66202 Newfoundland : The fact-finding that the Assessment Review Commissioner made there provides a persuasive logic to apply to Lakewood’s similar fact situation here; and it also provides a clear example of a business stepping through the alternate remedies that were available to it, instead of applying directly to court as Lakewood has done here.

I will come back to how 66202 Newfoundland reflects on “process” later in these reasons. March 2019 Payment Plan

[ 97 ] I set out the details of the Payment Plan that Lakewood and the Town entered into on March 7, 2019, and need not repeat them here.

The Town claims that it was a “settlement agreement” and that that the Plan precludes any recovery of the taxes that Lakewood paid by it for the 2014-2019 period. [ 98 ] This is how the Town summarized its position on the Plan in paragraph 37 of the Brief of Fact and Law that it filed in this matter: The parties came to a compromise settlement resolving Lakewood’s complaints about the Town’s taxation, and Lakewood should be held to its bargain, particularly given that the Town is now limitation-barred from pursuing some of the interest it agreed not to pursue under the settlement agreement. [ 99 ] In the first instance, Lakewood simply dismissed the Payment Plan by noting in paragraph 23 of its Brief of Fact and Law that “[i]n the early part of 2019, Lakewood (without any legal advice) and the Town agreed upon a payment plan regarding the tax arrears situation”.

Subsequently, it maintained that it signed the Plan under duress from the Town that was threatening enforcement procedures. Otherwise, it said that “[t]here was no agreement by Lakewood not to further contest its 2014-2019 tax liability” (para. 64 of Lakewood’s Reply Brief). [ 100 ] I will not decide if the Payment Plan is, as the Town claims, a typical “settlement agreement” that bars the claims that Lakewood makes for restitution and mandamus directing the Town to repay all the taxes that Lakewood paid to the Town for the 2014-2019 period.

I will accept it, however, as a clear representation that Lakewood accepted the taxing regime that the Town had in place for Marine Park during those years and of Lakewood’s further agreement that the Town acted reasonably in how it taxed Lakewood. [ 101 ] Overall, in

summary of the challenges that Lakewood made to its liability for taxes to the Town for 2014-2019, I find that: • The Town acted reasonably when it classified Marine Park for tax purposes during those, whether as “Parks”, an exception to its General Business Class or as part of the General Business Class. • The Town acted reasonably in the discretionary taxing decisions that it made and in the actions that it took toward Lakewood and it did not treat it disproportionately to other taxpayers in the Town and should not be required to account for them. • The Town acted reasonably in treating Marine Park as a business property and not as a residential property. [ 102 ] In the result, I dismiss Lakewood’s claims for: • Certiorari to quash taxation assessments, decisions and actions that the Agency and the Town undertook for taxation years 2014- 2019. • Declaratory orders as to what taxes, if any, it owes to the Town for any of the years from 2014-2019 inclusive. • Orders based on restitution principles or in the nature of mandamus directing the Town to repay any taxes it collected from Lakewood from 2014-2019 inclusive. [ 103 ] I turn now to consider the taxation years 2020-2022.

Taxation: 2020 to 2022 [ 104 ] Lakewood’s attacks on the taxes that the Town levied against it for the 2020, 2021 and 2022 taxation years turn on the Notices of Supplementary Assessment that the Agency issued on December 14, 2020, for the 2020 and 2021 taxation years, as well as the assessment that it accepted for the 2022 taxation years that was the same as the Notices of Supplementary Assessment. [ 105 ] It set out some of its criticisms of the Town’s actions in its Originating Application, as well as in its Brief of Fact and Law.

From the Originating Application [ 106 ] In paragraph 47 Lakewood notes that the “…Town’s Fee Structure concerning property and business taxes, for the Year 2020, was the subject of a Resolution at a Council Meeting on December 16, 2019 and of a page published on the Town’s website”.

In the next paragraph, Lakewood offers these criticisms of the “Resolutions and Fee Structure Pages”: • “…not comprehensive assessment and taxation Resolutions in the form of a By-law stating assessment and taxation details”; • “…the Resolutions and pages did not state…that the Town was imposing a real property tax pursuant to sections 112-114 of the Municipalities Act and imposing a business tax pursuant to

section 12-124…”; • “…the Resolution and the page…did not authorize the MAA [the Agency] to make property and business tax assessments on behalf of the Town…”; • “…the Resolution and page did not address assessment and taxation details such as the principles and criteria by which classification of real property under

section 3 of the Assessment Act and sections 114,124 and 125 of the Municipalities Act were to be, and were being, made”. From the Brief of Fact and Law [ 107 ] In paragraph 174 Lakewood notes that “…the Town stated publicly that it did not know that Lakewood’s assessments were going

to drastically increase [after the Supplementary Assessments]. The Town never contacted Lakewood in advance [of the Supplementary Assessments] concerning the Town’s decision to single out Lakewood as the only business to go from a tax mil rate of 14 mils to 70 mils concerning Lakewood’s campground, with the next highest mil rate being 20 mils. Why did Lakewood’s Campground mil rate go up 500% at the same time as its assessed value was increased 61% by unusual and unauthorized Supplementary Assessments?

Why was it fair and just for one business occupancy tax, for just Lakewood’s business occupancy tax, in the Town to increase 438% while other businesses were receiving Covid-19 tax relief?

The Town has offered no justification for singling out Lakewood for such special high taxation, no justification of the bona fides of the Town’s specific taxation of Lakewood, and the Town has not done anything to alter the mil rate concerning the campground in light of the large increases in assessed values concerning Lakewood’s Property produced by the improper Supplementary Assessments”. [ 108 ] Lakewood criticized the Agency as heavily as it did the Town.

In paragraph 179 it states: “The MAA’s actions in issuing the 2020 and 2021 Supplementary Assessments at the request of the Town without consulting or advising Lakewood and without allowing Lakewood to make representations; in issuing the 2022 Assessments at the same market values as the 2021 Supplementary Assessments with no alterations in light of Lakewood’s appeal of and appeal comments regarding market value concerning the 2021 Supplementary Assessments; in not responding to Lakewood’s requests for an explanation of the 2020 and 2021 Supplementary Assessments until after the appeal period concerning the 2022 Assessments had expired; in not advising and warning Lakewood that it needed to appeal the 2022 Assessments; and in refusing to exercise its statutory authority under

section 22 of the Assessment Act to correct the value errors concerning the 2022 Assessment and thereby give Lakewood a right to appeal the 2022 Assessments was not impartial and independent, nor were those actions fair and equitable”. [ 109 ] Overall, Lakewood is highly critical of both the Town and the Agency.

It accuses them of bad faith, of acting unfairly, and inequitably and partially towards Lakewood, of interpreting the Municipalities Act and the Assessment Act improperly, and of acting ultra vires the legislation. [ 110 ] It is clear from the foregoing that Lakewood feels that the Town did not consult with it sufficiently about its taxing practices, that it did not adopt appropriate resolutions or pass by-laws that conformed with the requirements of the Municipalities Act , that it did not explain its taxing practices adequately to Lakewood and its other taxpayers and generally that it did not account for its actions. [ 111 ] I addressed those criticisms of the Town earlier in these reasons when discussing the 2014-2019 taxation years and need not repeat them in detail here.

Suffice it to say, that I found there and maintain here that the Town is due much more deference from Lakewood than it affords and that the Town was as accountable as was required of it, whether to Lakewood in particular or its citizenry as a whole. [ 112 ] I also noted earlier in these reasons Cameron J.A.’s comments from Quigley “…that an application for certiorari will not be entertained where there is an adequate alternative remedy”; and that “[t]he burden is upon the person who seeks one of the prerogative remedies - discretionary remedies of last resort - to satisfy the court that there is no adequate alternative remedy”. [ 113 ] Lakewood is looking for orders in the nature of certiorari and mandamus , in this case, with restitution in aid, to quash the Town’s taxing actions and decisions and the Agency’s Notices of Supplementary Assessment and to recover all the taxes it paid to the Town since 2014.

Aside from the Lakewood’s failure to establish the grounds for the discretionary remedies that it seeks, it had an “adequate alternative remedy” that it failed to avail of before it started these proceedings.

Let me explain. [ 114 ] These are Lakewood’s primary criticisms of the Notices of Supplementary Assessment that the Town relied on to tax it during the 2020-2022 tax years inclusive: As to the Agency: • It acted either at the behest of the Town or at the Town’s direction to conduct Supplementary Assessments. • It subdivided the property, creating three new units of property without authority to do so. • It did not advise Lakewood of the intended subdivision, it did not seek input from Lakewood of the intended subdivision, nor did it explain why. • It increased the property value significantly but did not permit Lakewood input nor explain the increase. • It failed to consider that it paid $690,000 + HST in an arm’s length transaction with the Government of Newfoundland and Labrador in December 2018. • It assessed Lakewood’s campground as business property when it is residential property. • It did not bring Lakewood’s appeals of its Notices of Supplementary Assessment forward in a timely way, and, in particular, by the March 15, 2021, deadline that applied to the 2020 and 2021 Notices.

As to the Town: • It adopted the Supplementary Assessments without questioning their validity. • It accepted the Agency’s subdivision of Lakewood’s Property into three additional units. • It accepted the Agency’s designation of Lakewood’s campground as business property when it is residential property. • It failed to adopt appropriate resolutions and by-laws to properly pass the taxing structures it relied on. • It failed to explain the rationales for its taxing decisions.

• It classified RV Campgrounds as “Commercial Recreation Parks”, excepting them from the General Business classification and then imposed an inordinately high tax mil rate on the excepted class, knowing that Lakewood was the only business in it. [ 115 ] I have answered many of these criticisms already in these reasons when I discussed taxation in the 2014-2019 period and need not repeat them here. As to the remainder, they are criticisms that were well within the purview of an Assessment Commissioner appointed under

section 32 of the Assessment Act . [ 116 ] Lakewood filed Notices of Appeal against the Notices of Supplementary Assessment on February 1, 2021, and it directed them to both the Business Realty and the Business Occupancy assessments.

Lakewood challenged the Supplementary Assessments on various grounds, including: • There is no statutory authority for them. • The properties are assessed in excess of their fair market values. • The assessments are inconsistent with assessment of other similar properties in the Town. • The park property is predominantly residential not business usage. [ 117 ] However, Lakewood did not proceed with its appeals. Lakewood actually submitted that the appeals are now “void and of no effect” since they did not take place before March 15, 2021, the date by which Lakewood thinks they should have been heard.

Lakewood’s counsel sent an email to the Agency’s counsel on August 17, 2021 stating his belief that the appeals were spent (Tab 25 of the Originating Application): …I am writing to advise yourself [counsel for the Agency] and the Town of Pouch Cove that these 2020 and 2021 Supplementary Assessment Appeals are void and of no effect because of the failure of the Town and the Assessment Agency to follow the statutory requirements of the Assessment Act. [ 118 ] Don Hearn, Executive Director and CEO of the Agency, appears to think that the appeals are still extant. I repeat here, as I noted earlier what Mr.

Hearn said in an affidavit he filed in this matter on August 31, 2022: “The appeals of the 2020 and 2021 Supplementary Assessments to the commissioner for Pouch Cove has been suspended pending the result of the within Originating Application” [emphasis added] (para. 25). [ 119 ] Earlier in these reasons, I referred to Hurley J.’s decision in 66202 Newfoundland and stated that it is also relevant to this aspect of Lakewood’s application. It will be recalled that 66202 Newfoundland owned Mountain View Retirement Centre, a personal care home.

An assessor from the Agency assessed the property for business tax purposes and 66202 Newfoundland appealed claiming that “the property is 95%+ a retirement home” in that “[t]he rooms are the homes of the residents through rental”. [ 120 ] The Agency reviewed the appeal internally and declined to change the assessment, so an Assessment Commissioner was appointed under

section 32 of the Assessment Act to hear 66202 Newfoundland’s appeal, which he did and dismissed it. Hurley J. dismissed 66202 Newfoundland’s appeal to this Court when he concluded that the Assessment Commissioner had made a finding of fact from which there was no appeal to this Court. [ 121 ] 66202 Newfoundland appealed Hurley J.’s decision to the Court of Appeal, which also dismissed 66202 Newfoundland’s appeal.

Welsh J.A. wrote the majority decision in the Court of Appeal, in which the two other judges concurred although they added comments on an ancillary issue, not related to the grounds on which Welsh J.A. dismissed it. I quoted Welsh J.A.’s reasons for dismissing the appeal earlier and will not repeat them here. [ 122 ] Now, I have gone at some length in discussing 66202 Newfoundland , perhaps unnecessarily but I want to highlight the process that 66202 Newfoundland followed in challenging the Agency’s finding that its property was wholly business and not “95% + a retirement home”.

That is precisely what Lakewood should have done here (and may still be able to do) to challenge the Supplementary Assessments that the Agency issued on December 14, 2020 and on which the Town relied for the taxes it imposed on Lakewood in 2020, 2021, and 2022 taxes.

Lakewood had an alternate remedy that it should have availed of before asking for, as Cameron J.A. described them in Quigley , “discretionary remedies of last resort”. [ 123 ] It would appear from what Don Hearn said in August 2022 that the remedy is still available; but if it is not, as Lakewood appears to think, Cameron J.A. also answered that in Quigley at paragraph 16 : Where the alternative remedy is a right of appeal to a court, usually the court will decline to exercise the discretion to grant a prerogative remedy.

This is true even though the time for appeal may have expired or leave to appeal may have been denied. The same reasoning would apply where an appeal had been discontinued. [emphasis added] [ 124 ] In the result, I dismiss Lakewood’s attack on the Notices of Supplementary Assessment and the Town’s reliance on them for Lakewood’s failure to pursue the alternate remedy available to it to challenge the Supplementary Assessments. Thus, because of that finding, I have not examined the actions of the Agency or the Town in the nature of judicial review of their actions.

I make no comment as to the whether the Agency or the Town acted appropriately in the decisions or actions, they took for the taxes that the Town imposed on Lakewood for the period 2022-2022.

Costs [ 125 ] I see no need to depart from the usual rule that costs follow the cause. I order Lakewood to pay the costs of each Respondent to be taxed on Column 3 of the Scale of Costs.

Summary and Disposition [ 126 ] Lakewood Development Corporation Inc. applied by Originating Application to quash actions and decisions taken by the Municipal Assessment Agency Inc. and the Town Council of the Town of Pouch Cove affecting the municipal taxes that Lakewood either paid or owed to the Town. It sought judicial review of their actions and decisions and orders in the nature of certiorari to quash them and mandamus and restitution to recover taxes already paid. [ 127 ] The Court dismissed the Originating Application and order Lakewood to pay costs. Order [ 128 ] In the result, I order that: 1.

Lakewood’s Originating Application is dismissed. 2. Lakewood pay the costs of the Municipal Assessment Agency Inc. and the Town Council of the Town of Pouch Cove to be taxed on Column 3 of the Scale of Costs. _____________________________ Garrett A. Handrigan Justice