City of Edmonton Appellant v. Edmonton East (Capilano) Shopping Centres Limited, 2016 SCC 47

SUPREME COURT OF CANADA Citation: Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, [2016] 2 S.C.R. 293 Appeal heard: March 23, 2016 Judgment rendered: November 4, 2016 Docket: 36403 Between: City of Edmonton Appellant and Edmonton East (Capilano) Shopping Centres Limited (as represented by AEC International Inc.) Respondent - and - Attorney General of British Columbia, Assessment Review Board for the City of Edmonton and British Columbia Assessment Authority Interveners Coram: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ.

Reasons for Judgment: (paras. 1 to 62) Joint Dissenting Reasons: (paras. 63 to 125) Karakatsanis J. (Abella, Cromwell, Wagner and Gascon JJ. concurring) Côté and Brown JJ. (McLachlin C.J. and Moldaver J. concurring)

Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, [2016] 2 S.C.R. 293 City of Edmonton Appellant v. Edmonton East (Capilano) Shopping Centres Limited (as represented by AEC International Inc.) Respondent and Attorney General of British Columbia, Assessment Review Board for the City of Edmonton and British Columbia Assessment Authority Interveners Indexed as: Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd. 2016 SCC 47 File No.: 36403. 2016: March 23; 2016: November 4.

Present: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ. on appeal from the court of appeal for alberta Municipal law — Taxation — Property assessments — Assessment Review Board for City of Edmonton — Taxpayer filing complaint disputing municipal property assessment amount — Board increasing property assessment as requested in City’s response to complaint — Lower courts agreeing with taxpayer that Board cannot increase property assessment — Whether Board had power to increase assessment — Municipal Government Act, R.S.A. 2000, c. M-26, s. 467 .

Administrative law — Appeals — Standard of review — Boards and tribunals — Assessment Review Board for City of Edmonton — Taxpayer filing complaint disputing municipal property assessment amount — Board increasing property assessment as requested in City’s response to complaint — Standard of review applicable to Board’s decision to increase taxpayer’s property assessment — Whether Board’s decision reasonable — Municipal Government Act, R.S.A. 2000, c. M-26, s. 470 . The taxpayer Company owns a shopping centre in Edmonton, Alberta.

For the 2011 taxation year, the City of Edmonton assessed the value of the mall at approximately $31 million. The Company disputed this assessment by filing a complaint with the Assessment Review Board. The Company’s position was that the assessed value exceeded the market value of the mall and was inequitable when compared to the assessed value of other properties. It sought a reduction in the assessed value to approximately $22 million. When reviewing the Company’s submissions and evidence, the City discovered what it determined was an error in its original assessment.

The City requested that the Board increase the assessed value of the shopping centre to approximately $45 million. While the Company expressed concern about the City’s change in position, it did not dispute the Board’s power to increase the assessment in this case. Under s. 467(1) of the Municipal Government Act , after hearing a complaint, an assessment review board may “change” the assessment or “decide that no change is required.” The Board ultimately increased the assessment to approximately $41 million.

A decision of an assessment review board may be appealed to the Court of Queen’s Bench, with permission, on a question of law or jurisdiction of sufficient importance to merit an appeal. On appeal to the Alberta Court of Queen’s Bench, the chambers judge set aside the Board’s decision and remitted the matter to the Board for a hearing de novo . This order was affirmed on appeal to the Alberta Court of Appeal.

This Court must determine what the appropriate standard of review is for the Board’s implicit decision that it could increase the Company’s property assessment and determine if the Board’s decision withstands scrutiny on that standard. Held (McLachlin C.J. and Moldaver, Côté and Brown JJ. dissenting): The appeal should be allowed, the decision of the Court of Appeal set aside and the Board’s decision reinstated. Per Abella, Cromwell, Karakatsanis, Wagner and Gascon JJ.: The standard of review in this case is reasonableness.

Unless the jurisprudence has already settled the applicable standard of review, the reviewing court should begin by considering whether the issue involves the

interpretation by an administrative body of its own statute or statutes closely connected to its function. If so, the standard of review is presumed to be reasonableness. This presumption of deference on judicial review respects the principle of legislative supremacy and the choice made to delegate decision making to a tribunal, rather than the courts. A presumption of deference on judicial review also fosters access to justice to the extent the legislative choice to delegate a matter to a flexible and expert tribunal provides parties with a speedier and less expensive form of decision making.

In this case, the framework from Dunsmuir v. New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190 , provides a clear answer. The substantive issue here — whether the Board had the power to increase the assessment — turns on the

interpretation of s. 467(1) of the Act , the Board’s home statute. The issue does not fall within one of the four categories identified in Dunsmuir as calling for correctness review. Accordingly, the standard of review is presumed to be reasonableness.

A statutory right of appeal is not a new category of correctness and should not be added to the list of correctness categories enumerated in Dunsmuir . Recognizing issues arising on statutory appeals as a new category to which the correctness standard applies would go against strong jurisprudence from this Court. The presumption of reasonableness is grounded in the legislature’s choice to give a specialized tribunal responsibility for administering the statutory provisions, and the expertise of the tribunal in so doing.

Expertise arises from the specialization of functions of administrative tribunals like the Board which have a habitual familiarity with the legislative scheme they administer. Expertise may also arise where legislation requires that members of a given tribunal possess certain qualifications. However, expertise is not a matter of the qualifications or experience of any particular tribunal member. Rather, expertise is something that inheres in a tribunal itself as an institution.

This Court has often applied a reasonableness standard on a statutory appeal from an administrative tribunal, even when the appeal clause contained a leave requirement and limited appeals to questions of law , or to questions of law or jurisdiction. In light of this strong line of jurisprudence — combined with the absence of unusual statutory language — there was no need for the Court of Appeal to engage in a long and detailed contextual analysis. Inevitably, the result would have been the same. The presumption of reasonableness is not rebutted here.

The contextual approach can generate uncertainty and endless litigation concerning the standard of review. As in British Columbia, legislatures can specify the applicable standard of review; unfortunately explicit legislative guidance is not common. The Board’s decision to increase the Company’s property assessment was reasonable. Given that the Company did not dispute the Board’s power to increase the assessment in this case, it is not surprising the Board did not explain why it was of the view that it could increase the assessment.

Accordingly, the Board’s decision should be reviewed in light of the reasons which could be offered in support of it. It was reasonable for the Board to interpret s. 467(1) of the Act to permit it to increase the Company’s property assessment at the City’s request. While s. 460(3) of the Act provides that only assessed persons and taxpayers may make complaints, the scheme of the Act does not require that municipalities be empowered to file a “complaint” against an assessment. The Act provides other mechanisms by which municipalities can change or seek changes to an assessment. The Board’s

interpretation of s. 467(1) of the Act is consistent with the ordinary meaning of “change” in s. 467(1) and the overarching policy goal of the Act, to ensure assessments are correct, fair and equitable. The alternative would permit taxpayers to use the complaints process to prevent assessments made in error from being corrected, thereby frustrating the Act’s purpose. Per McLachlin C.J. and Moldaver, Côté and Brown JJ. (dissenting): The appropriate standard of review of the Assessment Review Board’s decision is correctness.

The legislature of Alberta created a municipal assessment complaints regime that allows certain questions squarely within the expertise of an assessment review board to be reviewed on a deferential standard through the ordinary mechanism of judicial review. The legislature, however, also designated certain questions of law and jurisdiction — for which standardized answers are necessary across the province — to be the subject of an appeal to the Court of Queen’s Bench.

The statutory scheme and the Board’s lack of relative expertise in interpreting the law lead to the conclusion that the legislature intended that the Board’s decisions on such questions be reviewed on a correctness standard. As a result, even were the Board’s

interpretation presumptively owed deference on the basis that the Board is interpreting its home statute, this presumption of deference has been rebutted by clear signals of legislative intent. Consistency in the understanding and application of these legal questions is necessary, and only courts can provide such consistency. The existence of a statutory right of appeal can, in combination with other factors, lead to a conclusion that the proper standard of review is correctness.

A statutory right of appeal, like a privative clause, is an important indicator of legislative intent and, depending on its wording, it may be at ease with judicial intervention. But a statutory right of appeal is not a new “category” of correctness review. The ostensibly contextual standard of review analysis should not be confined to deciding whether new categories have been established. An approach to the standard of review analysis that relies exclusively on categories and eschews any role for context risks introducing the vice of formalism into the law of judicial review.

In every case, a court must determine what the appropriate standard of review is for this question decided by this decision maker. This is not to say that a full contextual standard of review analysis must be conducted in every single case. Where a standard of review analysis is performed and the proper standard of review is determined for a particular question decided by a particular decision maker, that standard of review should apply in the future to similar questions decided by that decision maker.

Disregard for the contextual analysis would represent a significant departure from Dunsmuir and from this Court’s post- Dunsmuir jurisprudence. The question at issue here is not one which falls within the Board’s expertise. An administrative decision maker is not entitled to blanket deference in all matters simply because it is an expert in some matters. An administrative decision maker is entitled to deference on the basis of expertise only if the question before it falls within the scope of its expertise, whether specific or institutional. E xpertise is a relative concept. It is not absolute.

While the Board may have familiarity with the application of the assessment provisions of the Act , the legislature has recognized that the Board’s specialized expertise does not necessarily extend to general questions of law and jurisdiction. The Board’s decisions may, instead, be appealed on these questions of law and jurisdiction. The legislature created a tribunal with expertise in matters of valuation and assessment.

In light of this lack of relative expertise on questions of law and jurisdiction, it cannot be maintained that a presumption applies that the legislature intended that the Board’s determinations on questions of law and jurisdiction be owed deference. Applying the proper standard, the Board erred in increasing the Company’s property assessment in this case and the appeal should be dismissed. The Board’s decision to increase the assessed value based on the City’s submissions must be quashed because the Board considered information that it was statutorily prohibited from considering.

Assessment review boards have jurisdiction only to adjudicate the issues that are raised in the assessed person’s complaint form. The Board in this case erred by hearing and partially accepting the City’s new and revised assessment based on an entirely new classification, one which was not the subject of the Company’s complaint. The word “change” in s. 467(1) of the Act should be given its ordinary and grammatical meaning.

The Board is not precluded from ever increasing an assessment; however, the Board’s decision-making authority in this case was limited to the specific matters that were raised in the Company’s complaint. The Board had no authority to inquire into the fairness and equity of the assessment generally and to consider or accept elements of the new assessment proposed by the City in increasing the assessment.

Cases Cited By Karakatsanis J. Applied: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; distinguished: Tervita Corp. v. Canada(Commissioner of Competition), 2015 SCC 3, [2015] 1 S.C.R. 161; approved: Edmonton (City) v. Army & Navy Department Stores Ltd.,[2002] A.M.G.B.O. No. 126 (QL); referred to: Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29, [2016] 1 S.C.R. 720;Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, [2015] 2 S.C.R. 3; Canadian Artists’ Representation v. National Galleryof Canada, 2014 SCC 42, [2014] 2 S.C.R. 197; McLean v.

British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R.895; Canadian Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57, [2015] 3 S.C.R. 615; Alberta (Information and PrivacyCommissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654; Smith v. Alliance Pipeline Ltd., 2011 SCC 7,[2011] 1 S.C.R. 160; Bell Canada v. Bell Aliant Regional Communications, 2009 SCC 40, [2009] 2 S.C.R. 764; Sattva Capital Corp. v.Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633; Ontario (Energy Board) v. Ontario Power Generation Inc., 2015 SCC 44,[2015] 3 S.C.R. 147; ATCO Gas and Pipelines Ltd. v.

Alberta (Utilities Commission), 2015 SCC 45, [2015] 3 S.C.R. 219; Dr. Q v.College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226; Law Society of New Brunswick v. Ryan,2003 SCC 20, [2003] 1 S.C.R. 247; Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada,2012 SCC 35, [2012] 2 S.C.R. 283; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339; National CornGrowers Assn. v. Canada (Import Tribunal), (SCC), [1990] 2 S.C.R. 1324; Newfoundland and Labrador Nurses’ Unionv.

Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708; Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27; Canadian Natural Resources Ltd. v. Wood Buffalo (Regional Municipality), 2012 ABQB 177, 535 A.R. 281. By Côté and Brown JJ. (dissenting) Dr. Q v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226; C.U.P.E. v. Ontario(Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539; Monsanto Canada Inc. v. Ontario (Superintendent of Financial Services), 2004SCC 54, [2004] 3 S.C.R. 152; Osborne v. Rowlett (1880), 13 Ch. D. 774; Dunsmuir v.

New Brunswick, 2008 SCC 9, [2008] 1 S.C.R.190; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339; Sattva Capital Corp. v. Creston Moly Corp.,2014 SCC 53, [2014] 2 S.C.R. 633; McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895; Smith v.Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160; Bell Canada v. Bell Aliant Regional Communications, 2009 SCC 40, [2009] 2S.C.R. 764; Edmonton (City) v. Edmonton (City) Assessment Review Board, 2010 ABQB 634, 503 A.R. 144; Associated Developers Ltd.v.

Edmonton (City), 2011 ABQB 592, 527 A.R. 287; Edmonton (City) v. Edmonton (Composite Assessment Review Board), 2012 ABQB118, 534 A.R. 110; Habtenkiel v. Canada (Citizenship and Immigration), 2014 FCA 180, [2015] 3 F.C.R. 327; R. v. D.L.W., 2016 SCC22, [2016] 1 S.C.R. 402; Townsend v. Kroppmanns, 2004 SCC 10, [2004] 1 S.C.R. 315; Pushpanathan v. Canada (Minister ofCitizenship and Immigration), (SCC), [1998] 1 S.C.R. 982; Canada (Director of Investigation and Research) v.Southam Inc., (SCC), [1997] 1 S.C.R. 748; National Corn Growers Assn. v.

Canada (Import Tribunal), (SCC), [1990] 2 S.C.R. 1324; Canada (Deputy Minister of National Revenue) v. Mattel Canada Inc., 2001 SCC 36, [2001] 2 S.C.R.100; Moreau-Bérubé v. New Brunswick (Judicial Council), 2002 SCC 11, [2002] 1 S.C.R. 249; Rogers Communications Inc. v. Society ofComposers, Authors and Music Publishers of Canada, 2012 SCC 35, [2012] 2 S.C.R. 283; United Brotherhood of Carpenters andJoiners of America, Local 579 v. Bradco Construction Ltd., (SCC), [1993] 2 S.C.R. 316; Alberta (Information andPrivacy Commissioner) v.

Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654; Canada (Canadian Human RightsCommission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471; Canadian Natural Resources Ltd. v. Wood Buffalo(Regional Municipality), 2012 ABQB 177, 535 A.R. 281; Prince Albert (City) v. 101027381 Saskatchewan Ltd., 2009 SKCA 59, 324Sask. R. 313; 79912 Manitoba Ltd. v. Winnipeg City Assessor (1998), (MB CA), 131 Man. R. (2d) 264; OrangeProperties Ltd. v. Winnipeg City Assessor (1996), (MB CA), 107 Man. R. (2d) 278; Harris v. Minister of NationalRevenue, (CA EXC), [1965] 2 Ex.

C.R. 653, aff’d (SCC), [1966] S.C.R. 489; Canada v. Last, 2014FCA 129, [2015] 3 F.C.R. 245; Edmonton ARB, Decision No. 0098 139/11, August 24, 2011; Edmonton ARB, Decision No. 0098174/10, August 4, 2010; Canadian Natural Resources Ltd. v. Wood Buffalo (Regional Municipality), 2014 ABCA 195, 575 A.R. 362;Immeubles B.P. Ltée v. Ville d’Anjou, [1978] C.S. 422; Executive Director of Assessment (N.B.) v. Ganong Bros. Ltd., 2004 NBCA 46,271 N.B.R. (2d) 43. Statutes and Regulations Cited Administrative Tribunals Act, S.B.C. 2004, c. 45, ss. 58, 59. Assessment Act, R.S.B.C. 1996, c. 20, s. 32.

Assessment Act, R.S.N.S. 1989, c. 23, s. 62(2). Assessment Act, R.S.O. 1990, c. A.31, s. 40. Cities Act, S.S. 2002, c. C-11.1, s. 197(3). Competition Tribunal Act, R.S.C. 1985, c. 19 (2nd Supp.), s. 13(1). Copyright Act, R.S.C. 1985, c. C-42. Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.). Matters Relating to Assessment and Taxation Regulation, Alta. Reg. 220/2004, ss. 4(1)(a), 15. Matters Relating to Assessment Complaints Regulation, Alta. Reg. 310/2009, ss. 8(2), 9, 10(2), 15(1). Municipal Assessment Act, C.C.S.M., c. M226, ss. 42, 43.

Municipal Government Act , R.S.A. 2000, c. M-26, ss. 15, 23 , 26 , 30 , 31 , 43 to 45 , 47 , 47.1 , 205 , 207 , 208 , 285 , 293(1) , 299 , 300 , 305 , 305.1 , 308 , 309(1) (c), 317 to 325 , 324 , 370 , 381 , 390 , 409.3 , 425.1 , 436.23 , 452 , 453 to 457 , 454 , 460 , 460.1(2) , 465 , 467 , 470 , 470.1(2) , 476.1 , 484.1 , 486 , 514 to 517 , 527.1 , 534 , 570 to 580 , 571 , 708.02 . Authors Cited Alberta. “2015 Alberta Assessment Quality Minister’s Guidelines” (online: www.municipalaffairs.alberta.ca/documents/as/2015_Assessment_Quality_Ministers_Guidelines.pdf). Alberta. Legislative Assembly.

Alberta Hansard , 2nd Sess., 27th Leg., April 21, 2009, p. 735. Bilson, Beth. “The Expertise of Labour Arbitrators” (2005), 12 C.L.E.L.J. 33. Breyer, Stephen. “Judicial Review of Questions of Law and Policy” (1986), 38 Admin. L. Rev. 363. Brown, Donald J. M., and John M. Evans, with the assistance of David Fairlie. Judicial Review of Administrative Action in Canada . Toronto: Thomson Reuters, 2013 (loose-leaf updated May 2016, release 1). Daly, Paul. “Struggling Towards Coherence in Canadian Administrative Law? Recent Cases on Standard of Review and Reasonableness” (forthcoming, McGill L.J. ).

Daly, Paul. “The Unfortunate Triumph of Form over Substance in Canadian Administrative Law” (2012), 50 Osgoode Hall L.J. 317. Dyzenhaus, David. “The Politics of Deference: Judicial Review and Democracy”, in Michael Taggart, ed., The Province of Administrative Law . Oxford: Hart, 1997, 279. Hart, H. L. A. The Concept of Law , 3rd ed. Oxford: Oxford University Press, 2012. Mullan, David J. “Establishing the Standard of Review: The Struggle for Complexity?” (2004), 17 C.J.A.L.P. 59. Sossin, Lorne. “Empty Ritual, Mechanical Exercise or the Discipline of Deference?

Revisiting the Standard of Review in Administrative Law” (2003), 27 Adv. Q. 478. APPEAL from a judgment of the Alberta Court of Appeal (Berger, Slatter and Rowbotham JJ.A.), 2015 ABCA 85 , 643 W.A.C. 210, 599 A.R. 210, 12 Alta. L.R. (6th) 236, 80 Admin. L.R. (5th) 240, 382 D.L.R. (4th) 85, 34 M.P.L.R. (5th) 204, [2015] 5 W.W.R. 547, [2015] A.J. No. 217 (QL), 2015 CarswellAlta 324 (WL Can.), affirming a decision of Rooke A.C.J., 2013 ABQB 526 , 570 A.R. 208, 14 M.P.L.R. (5th) 252, [2013] A.J.

No. 979 (QL), 2013 CarswellAlta 1745 (WL Can.), which set aside the decision of the Assessment Review Board, No. 0098 56/11, August 2, 2011. Appeal allowed, McLachlin C.J. and Moldaver, Côté and Brown JJ. dissenting. Cameron J. Ashmore and Tanya Boutin , for the appellant. Gilbert J. Ludwig , Q.C. , James B. Laycraft , Q.C. , Guy Régimbald and Brian K. Dell , for the respondent. Written submissions only by Katherine Webber , for the intervener the Attorney General of British Columbia. Katharine L. Hurlburt , Q.C. , for the intervener the Assessment Review Board for the City of Edmonton. R. Bruce E.

Hallsor and Colin G. Simkus , for the intervener the British Columbia Assessment Authority. The judgment of Abella, Cromwell, Karakatsanis, Wagner and Gascon JJ. was delivered by Karakatsanis J. — I. Introduction [ 1 ] Alberta residents may dispute their municipal property assessment before a local assessment review board. When one Edmonton taxpayer did so, the Assessment Review Board decided to increase the assessment the taxpayer had disputed.

The taxpayer appealed, submitting that when a taxpayer disputes an assessment the Board lacks the statutory power to increase the assessment and may only lower or confirm it. The Alberta Court of Queen’s Bench agreed with the taxpayer, as did the Court of Appeal. The City of Edmonton now appeals to this Court. [ 2 ] This appeal raises two issues:

(1) What is the appropriate standard of review for the Board’s implicit decision that it could increase the assessment?

(2) Does the decision withstand scrutiny on that standard? [ 3 ] For the following reasons, I conclude that the standard of review for the Board’s decision is reasonableness and that it was reasonable for the Board to find it had the power to increase the assessment. Accordingly, I would allow the appeal and reinstate the decision of the Board. II. Facts [ 4 ] Edmonton East (Capilano) Shopping Centres Limited (the “Company”) owns the Capilano Shopping Centre in Edmonton, Alberta.

For the 2011 taxation year, the City of Edmonton assessed the value of the mall as approximately $31 million. [ 5 ] In March 2011, pursuant to s. 460 of the Municipal Government Act , R.S.A. 2000, c. M-26 (“ MGA ”), the Company

disputed this assessment by filing a complaint with the Assessment Review Board for the City of Edmonton. The Company’s positionwas that the assessed value exceeded the market value of the mall and was inequitable when compared to the assessed value of otherproperties. It sought a reduction in the assessed value to approximately $22 million. [6] When reviewing the Company’s submissions and evidence, the City discovered what it determined was an error inits original assessment.

The City originally classified the mall as a “community centre” with the value of the rent from its anchor tenant,Wal-Mart, assessed at $3.50 per square foot. The City now said the mall should have been classified as a “power centre” with the valueof the rent from Wal-Mart assessed at $11.50 per square foot. This change in position was based in large part on the City’s review of theassessed value of the rents from three other Wal-Marts in Edmonton. In June 2011, the City informed the Company that it would seek anincrease from the Board.

In its written submissions to the Board, the City requested that the Board increase the assessed value toapproximately $45 million. [7] While the Company expressed concern about the City’s change in position, it did not dispute the Board’s power toincrease the assessment in this case. [8] The Board ultimately increased the assessment to approximately $41 million. On appeal to the Alberta Court ofQueen’s Bench, the chambers judge set aside the Board’s decision and remitted the matter to the Board for a hearing de novo. This orderwas affirmed on appeal to the Alberta Court of Appeal. III.

The Statutory Scheme and Provisions [9] Alberta’s MGA regulates property assessments in the province. The scheme operates on an annual basis, withmunicipalities preparing assessments each year (s. 285). Property assessors are subject to an overarching duty to prepare assessments “ina fair and equitable manner” (s. 293(1)). [10] The MGA permits any “assessed person” or “taxpayer” to contest a municipal property assessment before anassessment review board (s. 460).

After hearing a complaint, an assessment review board may “change” the assessment or “decide thatno change is required” (s. 467(1)). “An assessment review board must not alter any assessment that is fair and equitable, taking intoconsideration . . . the valuation and other standards set out in the regulations” (s. 467(3)). The valuation standard for most property is its“market value” (Matters Relating to Assessment and Taxation Regulation, Alta.

Reg. 220/2004, s. 4(1)(a)). [11] A decision of an assessment review board may be appealed to the Court of Queen’s Bench, with permission, on “aquestion of law or jurisdiction of sufficient importance to merit an appeal” (s. 470(1) and (5) MGA).

Where the appeal is granted, thematter is referred back to the assessment review board “and the board must rehear the matter and deal with it in accordance with theopinion of or any direction given by the Court on the question of law or the question of jurisdiction” (s. 470.1(2)). [12] In some circumstances, assessments may also be changed outside the complaints process. “If it is discovered thatthere is an error, omission or misdescription in any of the information shown on the assessment roll . . . the assessor may correct theassessment roll for the current year only” (s. 305(1) MGA).

However, if a complaint has been made about a property, “the assessor mustnot correct or change the assessment roll in respect of that property” until an assessment review board has made a decision or thecomplaint has been withdrawn (s. 305(5)). IV. Decisions Below A. Assessment Review Board, No. 0098 56/11, August 2, 2011 [13] The Board noted the Company’s position that the City should not be able to effectively submit a new assessmentbased on a power centre classification.

The Board did not address this argument except to say “the Board decided to continue the merithearing and place appropriate weight on the evidence presented”. Implicit in the Board’s analysis was a decision that it had the authorityto increase the assessment should it so choose. [14] On the merits of the assessment, the Board agreed in part with the City: it found that the mall was “something more”than a community centre, though not quite a power centre.

It assessed the value of the rent from Wal-Mart at $10.50 per square foot,reasoning in part that it would be inequitable for the assessed value to be as low as $3.50 per square foot when other nearby Wal-Martshad been assessed at $10.50 or $11.50 per square foot. The Board increased the overall assessment to approximately $41 million. B.

Court of Queen’s Bench, 2013 ABQB 526, 570 A.R. 208 — Rooke A.C.J. [15] The Court of Queen’s Bench granted permission to appeal, including on the issue of whether the Board “was entitledto proceed on a new assessment” (para. 14, quoting 2012 ABQB 445, at para. 60 ). [16] Rooke A.C.J. stated that the issue on appeal was a true question of jurisdiction of the kind discussed in Dunsmuir v.New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, and the standard of review was correctness. [17] Turning to the substantive issue, the chambers judge concluded that when a taxpayer complains about anassessment, the municipality must defend the assessed amount as correct and cannot ask the Board to change the assessment.

Noting that,under the MGA, only assessed persons and taxpayers may complain about an assessment (s. 460(3)), the chambers judge reasoned thatthe City had tried to do indirectly what it cannot do directly. He concluded the Board lacked jurisdiction to increase the assessment at theCity’s request, set aside the Board’s decision and remitted the matter to the Board for a hearing de novo. C. Court of Appeal, 2015 ABCA 85, 599 A.R. 210 — Slatter, Berger and Rowbotham JJ.A. [18] Writing for the court, Slatter J.A. agreed that the standard of review was correctness.

While he did not agree that theissue on appeal was a true question of jurisdiction, he concluded that the decisions of a tribunal subject to a statutory right of appeal (or a

right to apply for leave to appeal), rather than ordinary judicial review, should be reviewed on the correctness standard. [ 19 ] On the substantive issue, the Court of Appeal concluded that s. 467(1) does not empower the Board to increase an assessment at the City’s request. The City did not have the right to seek an increase: it was not empowered to make a complaint under s. 460(3). The court agreed with the chambers judge that the City’s power to correct errors ( s. 305 ) did not apply here, because there was no error; the City simply changed its mind.

The Court of Appeal concluded that the Board erred in increasing the assessment and dismissed the City’s appeal. V. Analysis A. Standard of Review [ 20 ] In this case, Slatter J.A. said: “The day may come when it is possible to write a judgment like this without a lengthy discussion of the standard of review” (para. 11). That day has not come, but it may be approaching. In Wilson v. Atomic Energy of Canada Ltd. , 2016 SCC 29 , [2016] 1 S.C.R. 720, my colleague Abella J. expressed an interest in revisiting the standard of review framework.

The majority appreciated Justice Abella’s efforts to stimulate a discussion on how to clarify or simplify our standard of review jurisprudence to better promote certainty and predictability. In my view, the principles in Dunsmuir should provide the foundation for any future direction. However, any recalibration of our jurisprudence should await full submissions.

This appeal was argued on the basis of our current jurisprudence and I proceed accordingly. [ 21 ] The Dunsmuir framework balances two important competing principles: legislative supremacy, which requires the courts to respect the choice of Parliament or a legislature to assign responsibility for a given decision to an administrative body; and the rule of law, which requires that the courts have the last word on whether an administrative body has acted within the scope of its lawful authority (paras. 27-31).

(1) Presumption of Reasonableness [ 22 ] Unless the jurisprudence has already settled the applicable standard of review ( Dunsmuir , at para. 62 ), the reviewing court should begin by considering whether the issue involves the

interpretation by an administrative body of its own statute or statutes closely connected to its function. If so, the standard of review is presumed to be reasonableness ( Mouvement laïque québécois v. Saguenay (City) , 2015 SCC 16 , [2015] 2 S.C.R. 3, at para. 46 ). This presumption of deference on judicial review respects the principle of legislative supremacy and the choice made to delegate decision making to a tribunal, rather than the courts.

A presumption of deference on judicial review also fosters access to justice to the extent the legislative choice to delegate a matter to a flexible and expert tribunal provides parties with a speedier and less expensive form of decision making. [ 23 ] The Dunsmuir framework provides a clear answer in this case. The substantive issue here — whether the Board had the power to increase the assessment — turns on the

interpretation of s. 467(1) of the MGA , the Board’s home statute. The standard of review is presumed to be reasonableness.

(2) Categories That Rebut the Presumption of Reasonableness [ 24 ] The four categories of issues identified in Dunsmuir which call for correctness are constitutional questions regarding the division of powers, issues “both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise”, “true questions of jurisdiction or vires ”, and issues “regarding the jurisdictional lines between two or more competing specialized tribunals” (paras. 58-61).

When the issue falls within a category, the presumption of reasonableness is rebutted, the standard of review is correctness and no further analysis is required ( Canadian Artists’ Representation v. National Gallery of Canada , 2014 SCC 42 , [2014] 2 S.C.R. 197, at para. 13 ; McLean v. British Columbia (Securities Commission) , 2013 SCC 67 , [2013] 3 S.C.R. 895, at para. 22 ). (

a) Is the Issue on Appeal a True Question of Jurisdiction? [ 25 ] The chambers judge found, and the Company submits, that whether the Board had the power to increase the assessment is a true question of jurisdiction reviewable on correctness. The Court of Appeal did not agree that this issue was a true question of jurisdiction. [ 26 ] This category is “narrow” and these questions, assuming they indeed exist, are rare ( Canadian Broadcasting Corp. v. SODRAC 2003 Inc. , 2015 SCC 57 , [2015] 3 S.C.R. 615, at para. 39 ; Alberta (Information and Privacy Commissioner) v.

Alberta Teachers’ Association , 2011 SCC 61 , [2011] 3 S.C.R. 654, at paras. 33-34 ). It is clear here that the Board may hear a complaint about a municipal assessment. The issue is simply one of interpreting the Board’s home statute in the course of carrying out its mandate of hearing and deciding assessment complaints. No true question of jurisdiction arises. (

b) Is a Statutory Right of Appeal a New Category of Correctness? [ 27 ] The Court of Appeal concluded that when the decisions of a tribunal are subject to a statutory right of appeal (or a right to apply for leave to appeal), rather than ordinary judicial review, the standard of review on such appeals is correctness. It determined that a statutory appeal should be recognized as “an addition to or a variation of” the list of correctness categories enumerated in Dunsmuir (Court of Appeal reasons, at para. 24).

Slatter J.A. reasoned that the existence of a statutory right of appeal is a strong indication that the legislature intended the courts to show less deference than they would in an ordinary judicial review. [ 28 ] I disagree.

In my view, recognizing issues arising on statutory appeals as a new category to which the correctness standard applies — as the Court of Appeal did in this case — would go against strong jurisprudence from this Court. [ 29 ] At least six recent decisions of this Court have applied a reasonableness standard on a statutory appeal from a decision of an administrative tribunal ( McLean ; Smith v. Alliance Pipeline Ltd. , 2011 SCC 7 , [2011] 1 S.C.R. 160; Bell Canada v. Bell

Aliant Regional Communications, 2009 SCC 40, [2009] 2 S.C.R. 764; Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014]2 S.C.R. 633; Ontario (Energy Board) v. Ontario Power Generation Inc., 2015 SCC 44, [2015] 3 S.C.R. 147; ATCO Gas and PipelinesLtd. v.

Alberta (Utilities Commission), 2015 SCC 45, [2015] 3 S.C.R. 219). [30] In Saguenay, this Court confirmed that whenever a court reviews a decision of an administrative tribunal, thestandard of review “must be determined on the basis of administrative law principles . . . regardless of whether the review is conductedin the context of an application for judicial review or of a statutory appeal” (para. 38, per Gascon J.; see also Dr. Q v. College ofPhysicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226, at paras. 17, 21, 27 and 36; Law Society of NewBrunswick v.

Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247, at paras. 2 and 21). [31] The Court of Appeal relied on this Court’s decision in Tervita Corp. v. Canada (Commissioner of Competition),2015 SCC 3, [2015] 1 S.C.R. 161, where the statutory appeal clause was referred to when finding the standard of review was correctness(para. 36). However, the Court in Tervita relied upon the unique statutory language of that particular appeal clause: a decision of thetribunal was appealable “as if it were a judgment of the Federal Court” (Competition Tribunal Act, R.S.C. 1985, c. 19 (2nd Supp.), s.13(1)).

Obviously, judgments of the Federal Court do not benefit from deference on appeal (except on questions of fact, for entirelydifferent reasons). Tervita does not stand for the proposition that all issues arising on all statutory appeals are reviewable on thecorrectness standard.

(3) Contextual Analysis [32] The Court of Appeal also conducted a review of the relevant contextual factors to support the conclusion that thestandard of review is correctness. The presumption of reasonableness may be rebutted if the context indicates the legislature intended thestandard of review to be correctness (Saguenay, at para. 46; Rogers Communications Inc. v.

Society of Composers, Authors and MusicPublishers of Canada, 2012 SCC 35, [2012] 2 S.C.R. 283, at para. 16). [33] The presumption of reasonableness is grounded in the legislature’s choice to give a specialized tribunalresponsibility for administering the statutory provisions, and the expertise of the tribunal in so doing.

Expertise arises from thespecialization of functions of administrative tribunals like the Board which have a habitual familiarity with the legislative scheme theyadminister: “. . . in many instances, those working day to day in the implementation of frequently complex administrative schemes haveor will develop a considerable degree of expertise or field sensitivity to the imperatives and nuances of the legislative regime”(Dunsmuir, at para. 49, quoting D. J.

Mullan, “Establishing the Standard of Review: The Struggle for Complexity?” (2004), 17C.J.A.L.P. 59, at p. 93; see also Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at para. 25).Expertise may also arise where legislation requires that members of a given tribunal possess certain qualifications. However, as withjudges, expertise is not a matter of the qualifications or experience of any particular tribunal member.

Rather, expertise is something thatinheres in a tribunal itself as an institution: “. . . at an institutional level, adjudicators . . . can be presumed to hold relative expertise in theinterpretation of the legislation that gives them their mandate, as well as related legislation that they might often encounter in the courseof their functions” (Dunsmuir, at para. 68). As this Court has often remarked, courts “may not be as well qualified as a given agency toprovide

interpretations of that agency’s constitutive statute that make sense given the broad policy context within which that agencymust work” (McLean, at para. 31, quoting National Corn Growers Assn. v. Canada (Import Tribunal), (SCC), [1990] 2S.C.R. 1324, at p. 1336, per Wilson J.). [34] As discussed, this Court has often applied a reasonableness standard on a statutory appeal from an administrativetribunal, even when the appeal clause contained a leave requirement and limited appeals to questions of law (see, e.g., Sattva), or toquestions of law or jurisdiction (see, e.g., McLean, Smith, Bell Canada).

In light of this strong line of jurisprudence — combined with theabsence of unusual statutory language like that at issue in Tervita — there was no need for the Court of Appeal to engage in a long anddetailed contextual analysis. Inevitably, the result would have been the same as in those cases. The presumption of reasonableness is notrebutted. [35] I would add this comment. The contextual approach can generate uncertainty and endless litigation concerning thestandard of review. Subject to constitutional constraints, the legislature can specify the applicable standard of review.

In BritishColumbia, for example, the legislature has displaced almost the entire common law on the standard of review (see the AdministrativeTribunals Act, S.B.C. 2004, c. 45, ss. 58 and 59). Unfortunately, clear legislative guidance on the standard of review is not common. B. Was It Reasonable for the Board to Find It Could Increase the Assessment?

(1) Reasonableness Review in the Absence of Reasons [36] A decision cannot be reasonable unless it “falls within a range of possible, acceptable outcomes” (Dunsmuir, at para.47, per Bastarache and LeBel JJ.). Reasonableness is also concerned with “the existence of justification, transparency and intelligibilitywithin the decision-making process” (ibid.).

When a tribunal does not give reasons, it makes the task of determining the justification andintelligibility of the decision more challenging. [37] When procedural fairness requires a tribunal to provide some form of reasons, a complete failure to do so willamount to an error of law (Newfoundland and Labrador Nurses’ Union v.

Newfoundland and Labrador (Treasury Board), 2011 SCC 62,[2011] 3 S.C.R. 708, at paras. 20-22). [38] However, when a tribunal’s failure to provide any reasons does not breach procedural fairness, the reviewing courtmay consider the reasons “which could be offered” in support of the decision (Dunsmuir, at para. 48, quoting D. Dyzenhaus, “ThePolitics of Deference: Judicial Review and Democracy”, in M.

Taggart, ed., The Province of Administrative Law (1997), 279, at p. 286).In appropriate circumstances, this Court has, for example, drawn upon the reasons given by the same tribunal in other decisions (AlbertaTeachers, at para. 56) and the submissions of the tribunal in this Court (McLean, at para. 72). [39] The City gave the Company notice that it would be seeking to increase the assessment. In its written submissions tothe Board, the City ultimately requested that the Board increase the assessment. The Company filed a lengthy response to the City’s

submissions and evidence. At the hearing, the Company argued that the City’s proper role was to “defend the assessment” and “respondto the evidence provided by the complainant”. However, in response to a question from the Board, the Company clarified that it was notdisputing the Board’s power to increase the assessment in this case: [Counsel for the City] has suggested that we are taking issue with your jurisdiction to make a change. We’re not. The legislationcertainly allows the Assessment Review Board to decrease or increase the assessment.

You have that power. (A.R., vol. 2, at p. 85) [40] Therefore, it is hardly surprising the Board did not explain why it was of the view that it could increase theassessment: the Company expressly conceded the point. Parties “cannot gut the deference owed to a tribunal by failing to raise the issuebefore the tribunal and thereby mislead the tribunal on the necessity of providing reasons” (Alberta Teachers, at para. 54). Accordingly,I shall review the Board’s decision in light of the reasons which could be offered in support of it.

(2) Was the Board’s Decision Reasonable? [41] The Board proceeded on the basis that s. 467(1) allowed it to increase the assessment at the City’s request. In myview, this was a reasonable

interpretation of the legislation. [42] Section 467(1) reads: 467(1) An assessment review board may, with respect to any matter referred to in section 460(5), make a change to an assessment roll ortax roll or decide that no change is required. [43]

Section 460 provides in relevant part: 460(1) A person wishing to make a complaint about any assessment or tax must do so in accordance with this section. . . .

(3) A complaint may be made only by an assessed person or a taxpayer. . . .

(5) A complaint may be about any of the following matters, as shown on an assessment or tax notice: (

a) the description of a property or business; . . . (

c) an assessment; [44] In a case that raised the same issue (Edmonton (City) v. Army & Navy Department Stores Ltd., [2002] A.M.G.B.O.No. 126 (QL)), the Alberta Municipal Government Board (which formerly heard appeals from the Board and had similar expertise)discerned the meaning of s. 467(1) by examining the words of the provision in their entire context and in their grammatical and ordinarysense, in harmony with the object and scheme of the MGA.

This is consistent with this Court’s well-established approach to statutoryinterpretation (Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, at para. 21). [45] On its face, the language of s. 467(1) empowers the Board to “change” an assessment with respect to “any matterreferred to in section 460(5)”. Section 460(5) references “an assessment” of value. As the Municipal Government Board reasonablyobserved in Army & Navy (at para. 114), as a matter of ordinary language, the word “change” includes “increase”. [46] This grammatical and ordinary meaning of s. 467(1) is consistent with the purpose of the MGA.

The Court of Appealsaid that the broad term “change” was used because some of the matters that can be subject to complaint, for example, the “description ofa property” (s. 460(5)(a)), are not numerical in nature. However, the Municipal Government Board in Army & Navy noted that tointerpret “change” to mean only “confirm or lower” would frustrate the overarching intent of the MGA, being to ensure that assessmentsare “current, correct, fair and equitable” (para. 114). This reasoning is compelling.

The importance of fairness and equity to theassessment process is repeatedly emphasized throughout the MGA: for example, s. 293(1) provides that property assessors are subject toan overarching duty to prepare the assessment “in a fair and equitable mannerˮ; s. 467(3) directs the Board to consider fairness and

equity when making its decisions; and s. 324(1) provides that the Minister of Municipal Affairs may quash an assessment if the Minister is of the opinion that it is not fair and equitable. As the Board emphasizes in its submissions, if it cannot increase an assessment that is below market value, other taxpayers would effectively bear more than their fair share of the overall tax burden.

It was reasonable for the Board to conclude that such a result would run contrary to — not further — the MGA ’s objects. [ 47 ] The Board is not simply an adjudicator responding only to the parties’ record and submissions, as evidenced by its inquisitorial powers ( s. 465 ) and power to refer an assessment to the Minister even when it is not the subject of a complaint ( s. 476.1 ). Within the complaints process, the Board’s role is to determine whether the assessment is fair and equitable (s. 467(3)).

Outside the complaints process, the Board may refer an assessment it “considers unfair and inequitable” to the Minister, who may investigate or quash the assessment (s. 476.1). Interpreting s. 467(1) in the manner urged by the Board is consistent with its mandate under ss. 467(3) and 476.1 of ensuring assessments are fair and equitable. [ 48 ] The Board’s view that s. 467(1) allows it to increase an assessment is also consistent with the scheme of the MGA . [ 49 ] Section 460(3) provides that only assessed persons and taxpayers may make complaints.

The courts below concluded that municipalities may not seek increases from the Board, for that would be tantamount to making a complaint. The Court of Appeal quoted with approval from Canadian Natural Resources Ltd. v. Wood Buffalo (Regional Municipality) , 2012 ABQB 177 , 535 A.R. 281: “A complaint belongs to the taxpayer, not the Municipality” (para. 166, per Sulyma J.). [ 50 ] But the scheme of the MGA does not require that municipalities be empowered to file a “complaint” against an assessment. The MGA provides other mechanisms by which municipalities can change or seek changes to an assessment. [ 51 ]

Section 305 provides in relevant part: 305(1) If it is discovered that there is an error, omission or misdescription in any of the information shown on the assessment roll, (

a) the assessor may correct the assessment roll for the current year only, and (

b) on correcting the roll, an amended assessment notice must be prepared and sent to the assessed person. …

(5) If a complaint has been made under

section 460 or 488 about an assessed property, the assessor must not correct or change the assessment roll in respect of that property until a decision of an assessment review board or the Municipal Government Board, as the case may be, has been rendered or the complaint has been withdrawn. [ 52 ] Section 305(1) permits an assessor (i.e., a municipality) to correct the assessment role if there is an “error, omission or misdescription”. The Court of Appeal interpreted s. 305(1) as a narrow provision that permits municipalities to correct only minor errors of a typographical or similar nature.

This, it said, was consistent with a municipality’s inability to make a complaint; the statutory scheme intended that the municipality would have to wait until the following year. However, by its ordinary meaning, “error” is not limited to typographical or similar errors. Consistent with the language of the provision, it is reasonable to conclude that s. 305(1) empowers a municipality to change an assessment it later determines is too low — i.e., was made in error. The Municipal Government Board reached this conclusion in Army & Navy : “. . . the intent of

Section 305 is to allow assessment authorities to correct errors discovered on the assessment roll whether they are of an administrative nature or to do with a change in an assessment” (para. 124). [ 53 ] Nor is the Court of Appeal’s restrictive reading of s. 305(1) required by “Canadian expectations about the imposition of taxes”, specifically the expectation that “retroactive taxation is possible, but not presumed” (para. 39). Although changes to an assessment will often produce tax consequences, the municipal taxing bylaw itself remains constant.

Changes to an assessment do not amount to retroactive taxation in the sense that term is normally understood. Rather, an error has been corrected in the underlying assessment. Put simply, the taxpayer’s tax liability now corresponds to what the law provides it always should have been for that year. [ 54 ] Thus, a municipality can directly correct an error in an assessment if no complaint is pending (s. 305(1)) or, if a complaint is pending, the municipality can ask the Board to correct the error and increase the assessment (s. 467(1)). Properly understood, a complaint does not “belong” to anyone.

It is a process through which the Board, with assistance from the taxpayer and municipality (and potentially other persons at the Board’s request), determines the correct, fair and equitable value for the assessment. [ 55 ] Section 305(5), which provides that an assessor “must not correct or change” an assessment “until a decision of an assessment review board . . . has been rendered or the complaint has been withdrawn”, is designed to protect the integrity of the complaints process.

When a taxpayer files a complaint, s. 305(5) prevents the municipality from altering the assessment unilaterally, rendering the complaint moot and potentially leading to a new complaint about the new assessment. Instead of resolving a dispute about a revised assessment in a separate proceeding, the municipality can simply explain at the hearing of the first complaint its reasons for wanting to revise the assessment, and the Board can change the assessment as it deems necessary. In the context of an annual scheme, this pursuit of administrative efficiency makes sense.

After the Board has determined the correct assessed value and rendered its decision, s. 305(5) does not prevent the municipality from correcting an error, omission or misdescription in any of the other information shown on the assessment roll (for example, the name and mailing address of the assessed person).

[ 56 ] The Company also relies on the Matters Relating to Assessment Complaints Regulation , Alta. Reg. 310/2009. The Company notes that a taxpayer has 60 days to review an assessment and file a complaint ( s. 309(1) (

c) MGA ), but only 7 days to reply to a municipality’s response to a complaint ( Matters Relating to Assessment Complaints Regulation , s. 8(2)(

b) and (c)). Thus, if a municipality discovers an error outside the complaints process and increases an assessment under s. 305(1), the taxpayer will have 60 days to respond; but if a municipality discovers an error within the complaints process and seeks an increase from the Board, the taxpayer will have only 7 days to respond.

The Company says it is implausible that the legislature intended to require a taxpayer to respond much more quickly to a change sought within the complaint process than to one made outside the complaint process, so it must be that a municipality cannot seek an increase from the Board when a taxpayer complains. [ 57 ] There are two plausible reasons why the legislature would have created a shorter time period for a taxpayer to reply to a municipality’s response to its complaint than the time period to file a complaint in the first place.

First, the legislature has empowered the Board to grant extensions of time and adjournments: where a municipality does seek an increase in response to a complaint, the Board can ensure the taxpayer has sufficient time to prepare its reply ( Matters Relating to Assessment Complaints Regulation , ss. 10(2) and 15(1) ). Natural justice and fairness require that the taxpayer have enough time to respond, and the statutory scheme accommodates this.

Accordingly, any perceived sense of injustice is largely illusory. [ 58 ] Second, in the interests of administrative expediency, it makes sense that the legislature would have established a shorter time horizon within the complaint process. In the normal course, the municipality will respond to a complaint by defending its original assessment. A municipality will respond to a complaint by seeking an increase only when it discovers an error, which is not likely to occur often.

By establishing a presumptively shorter time period to reply to a municipality’s response to a complaint, while allowing the Board to grant extensions of time when appropriate, the twin goals of administrative efficiency and fairness are both advanced. A lengthier time period for a reply would simply not be required in the majority of cases. [ 59 ] Section 9(4) of the Matters Relating to Assessment Complaints Regulation also does not require a restrictive

interpretation of “change” in s. 467(1). Section 9(4) of the Regulation relates to ss. 299 and 300 of the MGA , which permit an assessed person to ask a municipality for “sufficient information to show how the assessor prepared the assessment” (s. 299) of their property or any other property. Section 9(4) of the Regulation provides that the Board “must not hear any evidence from a municipality relating to information that was requested by a complainant under

section 299 or 300 of the Act but was not provided to the complainant”. [ 60 ] As the heading of s. 9 of the Regulation — “Failure to disclose” — makes clear, s. 9(4) simply provides a remedy for non-disclosure. For example, if the municipality has information relating to an assessment and does not, upon request, disclose it under s. 299 or s. 300, then the municipality cannot rely on that information before the Board. This is a traditional remedy for non- disclosure of evidence.

Properly understood, s. 9(4) does not preclude a municipality from changing its mind about an assessment and leading evidence to support its position, as long as it discloses the evidence within the prescribed time limit. Section 8(2)(

b) of the Regulation establishes that time limit: it requires the municipality to disclose its evidence at least 14 days before the hearing. This paragraph would serve little purpose if the municipality’s entire case already had to be disclosed to a complainant under s. 299 or s. 300. It is therefore unsurprising that s. 299 and s. 300 were not raised by the parties or addressed in the decisions below. [ 61 ] To conclude, it was reasonable for the Board to interpret s. 467(1) to permit it to increase the assessment at the City’s request. As the Municipal Government Board concluded in Army & Navy , this

interpretation is consistent with the ordinary meaning of “change” and the overarching policy goal of the MGA , to ensure assessments are correct, fair and equitable. The alternative would permit taxpayers to use the complaints process to prevent assessments made in error from being corrected, thereby frustrating the MGA ’s purpose. VI. Conclusion [ 62 ] The standard of review is reasonableness and the Board’s decision was reasonable. Accordingly, I would allow the appeal, set aside the decision of the Court of Appeal and reinstate the Board’s decision.

I would award the City its costs in this Court and the courts below, payable by the Company only. I would not award costs to or against the Board. The reasons of McLachlin C.J. and Moldaver, Côté and Brown JJ. were delivered by Côté and Brown JJ. (dissenting) — I. Introduction [ 63 ] We are of the view that the appropriate standard of review of the City of Edmonton Assessment Review Board’s decision is correctness.

The legislature of Alberta created a municipal assessment complaints regime that allows certain questions squarely within the expertise of an assessment review board to be reviewed on a deferential standard through the ordinary mechanism of judicial review. The legislature, however, also designated certain questions of law and jurisdiction — for which standardized answers are necessary across the province — to be the subject of an appeal to the Court of Queen’s Bench. Where the court quashes a decision, its answers to these questions are binding on the Board.

This leads to the unavoidable conclusion that the legislature intended correctness review to be applied to these questions. [ 64 ] As to the merits, we are of the view that the Board’s decision in this case should be quashed. Assessment review boards have jurisdiction only to adjudicate the issues that are raised in the assessed person’s complaint form. The Board in this case erred by hearing and partially accepting the City of Edmonton’s new and revised assessment based on an entirely new classification, one which was not the subject of Edmonton East (Capilano) Shopping Centres Limited’s (“Company”) complaint.

II. Standard of Review [ 65 ] The “overall aim” of the standard of review analysis has always been “to discern legislative intent, keeping in mind

the constitutional role of the courts in maintaining the rule of law”: Dr. Q v. College of Physicians and Surgeons of British Columbia , 2003 SCC 19 , [2003] 1 S.C.R. 226, at para. 26 . As Binnie J. once remarked, the standard of review analysis “is necessarily flexible” as it seeks “the polar star of legislative intent”: C.U.P.E. v.

Ontario (Minister of Labour) , 2003 SCC 29 , [2003] 1 S.C.R. 539, at para. 149 . [ 66 ] In our view, taken together, the statutory scheme and the Board’s lack of relative expertise in interpreting the law lead to the conclusion that the legislature intended that the Board’s decisions on questions of law and jurisdiction appealed to the Court of Queen’s Bench be reviewed on a correctness standard. As a result, even were the Board’s

interpretation presumptively owed deference on the basis that the Board is interpreting its home statute, this presumption of deference has been rebutted by clear signals of legislative intent. A. Contextual Analysis of the Statutory Scheme and Signals of Legislative Intent [ 67 ] As we will explain, the nature of the relevant statutory scheme demonstrates that the legislature intended correctness review be applied to decisions on questions of law and jurisdiction for which leave to appeal is granted to the Court of Queen’s Bench.

Any expertise of the Board does not overcome this clear indication of legislative intent. Indeed, we are of the view that the legislature has indicated that the Board lacks relative expertise to decide those questions. [ 68 ] Before addressing this legislative context, however, we wish to make some preliminary comments on the statutory right of appeal in s. 470 of the Municipal Government Act , R.S.A. 2000, c. M-26 (“Act”).

(1) A Statutory Right of Appeal Is Not a Category of Correctness Review [ 69 ] In response to the reasons of Slatter J.A. in the Court of Appeal ( 2015 ABCA 85 , 599 A.R. 210), the majority questions whether a statutory right of appeal is a new “category” of correctness review. Relying on recent decisions of this Court, it concludes that no such category of correctness review exists because the reasonableness standard has been applied in other cases where statutory rights of appeal are present. [ 70 ] We agree that a statutory right of appeal is not a new “category” of correctness review.

However, the ostensibly contextual standard of review analysis should not be confined to deciding whether new categories have been established. An approach to the standard of review analysis that relies exclusively on categories and eschews any role for context risks introducing the vice of formalism into the law of judicial review, as it seeks to “secure a measure of certainty or predictability at the cost of blindly prejudging what is to be done in a range of future cases, about whose composition we are ignorant”: H. L. A.

Hart, The Concept of Law (3rd ed. 2012), at pp. 129-30. [ 71 ] In every case, a court must determine what the appropriate standard of review is for this question decided by this decision maker. This is not to say that a full contextual standard of review analysis must be conducted in every single case. The applicable standard of review is a question of law: Monsanto Canada Inc. v. Ontario (Superintendent of Financial Services) , 2004 SCC 54 , [2004] 3 S.C.R. 152, at para. 6 . Questions of law forming part of the ratio decidendi of a decision are binding on lower courts as a matter of stare decisis : Osborne v.

Rowlett (1880), 13 Ch. D. 774, at p. 785 . Where a standard of review analysis is performed and the proper standard of review is determined for a particular question decided by a particular decision maker, that standard of review should apply in the future to similar questions decided by that decision maker. [ 72 ] In Dunsmuir v. New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190, this Court made room for the simple operation of the doctrine of precedent in this manner.

It recognized that a full contextual standard of review analysis need not be performed in every case, since the appropriate standard of review has often been settled in the jurisprudence. But “[t]his simply means that the analysis required is already deemed to have been performed and need not be repeated” (para. 57). It does not mean that the contextual analysis itself should be curtailed in favour of categories that are themselves “both over- and under-inclusive”: P. Daly, “The Unfortunate Triumph of Form over Substance in Canadian Administrative Law” (2012), 50 Osgoode Hall L.J. 317, at p. 342.

Despite the “attractive simplicity” of the category-based approach, eschewing context in favour of categories is “seriously overbroad”: S. Breyer, “Judicial Review of Questions of Law and Policy” (1986), 38 Admin. L. Rev. 363, at p. 373. Disregard for the contextual analysis would represent a significant departure from Dunsmuir and from this Court’s post- Dunsmuir jurisprudence.

(2) The Statutory Scheme [ 73 ] Because context always matters, we do not agree that the existence of a statutory right of appeal cannot, in combination with other factors, lead to a conclusion that the proper standard of review is correctness. A statutory right of appeal, like a privative clause, “is an important indicator of legislative intent” and, depending on its wording, it “may be at ease with [judicial intervention]”: Canada (Citizenship and Immigration) v. Khosa , 2009 SCC 12 , [2009] 1 S.C.R. 339, at para. 55 , per Binnie J.

In our view, the wording of this statutory appeal clause, in combination with the legislative scheme, points to the conclusion that the legislature intended that a more exacting standard of review be applied to questions appealed to the Court of Queen’s Bench. [ 74 ] The majority says, however, that a contextual analysis is unnecessary here in light of this Court’s recent decisions of Sattva Capital Corp. v. Creston Moly Corp. , 2014 SCC 53 , [2014] 2 S.C.R. 633; McLean v. British Columbia (Securities Commission) , 2013 SCC 67 , [2013] 3 S.C.R. 895; Smith v.

Alliance Pipeline Ltd. , 2011 SCC 7 , [2011] 1 S.C.R. 160; and Bell Canada v. Bell Aliant Regional Communications , 2009 SCC 40 , [2009] 2 S.C.R. 764. With respect, we do not read those decisions as supportive of our colleagues’ position, because none of them states or even implies that a right of appeal is not a relevant factor in the contextual analysis. [ 75 ]

Section 470 of the Act grants a statutory right of appeal with leave to the Court of Queen’s Bench on a “question of law or jurisdiction” ( s. 470(1) ) where a judge “is of the opinion that the appeal involves a question of law or jurisdiction of sufficient importance to merit an appeal and has a reasonable chance of success” ( s. 470(5) ).

If a question of law or jurisdiction is appealed to the Court of Queen’s Bench and the Court of Queen’s Bench decides the question and refers the matter back to the Board, “the board must rehear the matter and deal with it in accordance with the opinion of or any direction given by the Court on the question of law or the question of jurisdiction” ( s. 470.1(2) ).

[76] It is only questions of law and jurisdiction that are “of sufficient importance to merit an appeal” that may beappealed pursuant to s. 470 of the Act. All other questions may still be the subject of judicial review: Edmonton (City) v. Edmonton(City) Assessment Review Board, 2010 ABQB 634, 503 A.R. 144, at paras. 10-12; Associated Developers Ltd. v. Edmonton (City), 2011ABQB 592, 527 A.R. 287, at paras. 17-24; Edmonton (City) v.

Edmonton (Composite Assessment Review Board), 2012 ABQB 118, 534A.R. 110, at para. 78. [77] In our view, the legislature’s decision to enact a limited right of appeal rather than a full right of appeal indicates thatthe legislature intended these questions to be reviewed by the Court of Queen’s Bench for correctness. [78] The legislature must have known that judicial review is available for any question not covered by a limited right ofappeal (Habtenkiel v. Canada (Citizenship and Immigration), 2014 FCA 180, [2015] 3 F.C.R. 327, at para. 35; see also D. J. M. Brownand J. M.

Evans, Judicial Review of Administrative Action in Canada (loose-leaf), at p. 3-9), given that the legislature is presumed toknow the law: R. v. D.L.W., 2016 SCC 22, [2016] 1 S.C.R. 402, at para. 21, per Cromwell J.; Townsend v. Kroppmanns, 2004 SCC 10,[2004] 1 S.C.R. 315, at para. 9. The legislature only designated some questions to be the subject of this right of appeal, thereby signallingits intention that these important questions of law and jurisdiction be treated differently from all other questions which are subject toordinary judicial review.

These issues, after all, transcend the particular context of a disputed assessment and have broader implicationsfor the municipal assessment regime. Had the legislature merely intended to provide for a different procedure than judicial review toenhance administrative efficiency within the yearly cycle created by the legislature, it would have enacted a full statutory right of appealwith a shorter limitation period than ordinary judicial review. After all, questions of fact and mixed fact and law would also benefit froma shorter limitation period to enhance administrative efficiency within the yearly cycle.

We note, in this regard, the similarity between thewording of s. 470(5) and the statutory right of appeal that was considered in Pushpanathan v. Canada (Minister of Citizenship andImmigration), (SCC), [1998] 1 S.C.R. 982, in respect of which Bastarache J., for this Court, said: First, s. 83(1) would be incoherent if the standard of review were anything other than correctness. The key to the legislativeintention as to the standard of review is the use of the words “a serious question of general importance” . . . .

The general importance ofthe question, that is, its applicability to numerous future cases, warrants the review by a court of justice. Would that review serve anypurpose if the Court of Appeal were obliged to defer to incorrect decisions of the Board? Is it possible that the legislator would haveprovided for an exceptional appeal to the Court of Appeal on questions of “general importance”, but then required that despite the“general importance” of the question, the court accept decisions of the Board which are wrong in law, even clearly wrong in law, but notpatently unreasonable?

The only way in which s. 83(1) can be given its explicitly articulated scope is if the Court of Appeal — andinferentially, the Federal Court, Trial Division — is permitted to substitute its own opinion for that of the Board in respect of questions ofgeneral importance. [Emphasis added; para. 43.] [79] That correctness review was legislatively intended is supported by other aspects of the statutory scheme.

Section470.1(2) of the Act provides that, where the Court of Queen’s Bench “cancels a decision”, it must refer the matter back to the Board andthe Board must “rehear the matter and deal with it in accordance with the opinion of or any direction given by the Court on the questionof law or the question of jurisdiction”. This strongly suggests that correctness review is the standard that the legislature intended to beapplied to these questions, because giving “direction” on a pure and distilled question of law and jurisdiction would be inconsistent withreasonableness review.

The fundamental premise of reasonableness review is that “certain questions that come before administrativetribunals do not lend themselves to one specific, particular result”: Dunsmuir, at para. 47.

However, the fundamental premise ofs. 470.1(2) is that pure questions of law and jurisdiction appealed to the Court of Queen’s Bench do lend themselves to one specific,particular result because the Court of Queen’s Bench is bound to provide direction on these pure questions of law and jurisdiction andthe Board is prohibited from reaching a different result on those questions when the matter is remitted to it. [80] Further, as Slatter J.A. noted at the Court of Appeal, the municipal assessment regime set out in the Act is applied bylocal and composite assessment review boards in municipalities across the province.

Each assessment review board is a unique entityestablished by the local municipal council (s. 454). Because each assessment review board is a distinct entity, there is no overarchinginstitutional body capable of promoting consistency in the

interpretation and application of the Act between them. We echo the concernof Slatter J.A. that “it is undesirable for the Municipal Government Act to mean different things in different parts of the province” (para.30). Consistency in the understanding and application of these legal questions is necessary, and only courts can provide such consistency.And, to reiterate, the legislature of Alberta has done so here by providing assessed persons a right to appeal certain questions to thecourts, which are, in turn, tasked with providing binding rulings on those questions: s. 470.1(2) of the Act. B.

Expertise [81] In our view the question at issue is not one which falls within the Board’s expertise. Indeed, the Board’s lack ofexpertise in statutory

interpretation suggests that the legislature would have wanted courts to review Board answers on questions of lawon a more exacting standard. [82] We acknowledge that the notion of “expertise” has become a catch-all trigger for deferential review in this Court’sjurisprudence, since an administrative decision maker is simply presumed to be an expert in matters regarding the application of its homestatute. We wish, therefore, to be clear: our point of departure from the majority is whether the presumption has been rebutted.

And weadd this: in strengthening the presumption by ignoring or explaining away any factors that might rebut it, the majority risks making thispresumption irrebuttable. [83] Despite its prevalence, this presumption of expertise has rarely been given much explanation or content in ourjurisprudence: L. Sossin, “Empty Ritual, Mechanical Exercise or the Discipline of Deference? Revisiting the Standard of Review inAdministrative Law” (2003), 27 Adv. Q. 478, at pp. 490-91; B. Bilson, “The Expertise of Labour Arbitrators” (2005), 12 C.L.E.L.J. 33,at p. 41. As McLachlin C.J. explained in Dr.

Q, expertise “can arise from a number of sources and can relate to questions of pure law,mixed fact and law, or fact alone” (para. 29). Some administrative decision makers are required to possess expert qualifications orexperience in a particular area as a condition of appointment: Canada (Director of Investigation and Research) v. Southam Inc., (SCC), [1997] 1 S.C.R. 748, at paras. 50-53. Other administrative decision makers may accumulate “a measure of relativeinstitutional expertise” by habitually making findings of fact in a particular specialized legislative context: Dr. Q, at para. 29; National

Corn Growers Assn. v. Canada (Import Tribunal), (SCC), [1990] 2 S.C.R. 1324, at p. 1336, per Wilson J. This specificor institutional expertise may command deference, though the question of expertise is “closely interrelated” to the nature of the questionthat forms the basis of the application for judicial review: Canada (Deputy Minister of National Revenue) v. Mattel Canada Inc., 2001SCC 36, [2001] 2 S.C.R. 100, at para. 32. In other words, an administrative decision maker is not entitled to blanket deference in allmatters simply because it is an expert in some matters.

An administrative decision maker is entitled to deference on the basis of expertiseonly if the question before it falls within the scope of its expertise, whether specific or institutional. [84] A constant in this Court’s jurisprudence both pre- and post-Dunsmuir is that expertise is a relative concept. It is notabsolute: Pushpanathan, at para. 33; Dr. Q, at para. 28; Moreau-Bérubé v. New Brunswick (Judicial Council), 2002 SCC 11, [2002] 1S.C.R. 249, at para. 50; Rogers Communications Inc. v.

Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35,[2012] 2 S.C.R. 283, at para. 15, per Rothstein J. As Sopinka J. explained in United Brotherhood of Carpenters and Joiners of America,Local 579 v. Bradco Construction Ltd., (SCC), [1993] 2 S.C.R. 316, “a lack of relative expertise on the part of thetribunal vis-à-vis the particular issue before it as compared with the reviewing court is a ground for a refusal of deference” (p. 335).

Anadministrative decision maker often possesses greater relative expertise in interpreting and applying its constituting statute in the contextof administering a specialized regime: Pushpanathan, at para. 36; Dunsmuir, at para. 54; Smith, at para. 80, per Deschamps J., dissentingon this point.

But this is not an absolute rule, as a legislature may always indicate that the expertise of an administrative decision makerin interpreting and administering its home statute is not greater relative to the courts: see, e.g., Rogers Communications, at para. 16. [85] The legislature therefore has a role to play in designating and delimiting the presumed expertise of an administrativedecision maker. The majority’s view that “expertise is something that inheres in a tribunal itself as an institution” (para. 33) riskstransforming the presumption of deference into an irrebuttable rule.

Courts must not infer from the mere creation of an administrativetribunal that it necessarily possesses greater relative expertise in all matters it decides, especially on questions of law. After all, “someadministrative decision makers have considerable legal expertise . . . . Others have little or none”: Alberta (Information and PrivacyCommissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654, at para. 84, per Binnie J., concurring.

Respect forlegislative supremacy must leave open to the legislature the possibility of creating a non-expert administrative decision maker, orcreating an administrative decision maker with expertise in some areas but not others. Rothstein J. gave effect to this possibility in RogersCommunications, holding that the concurrent jurisdiction shared by the courts and the Copyright Board under the Copyright Act, R.S.C.1985, c. C-42, led to the inference “that the legislative intent was not to recognize superior expertise of the Board relative to the courtwith respect to such legal questions” (para. 15).

We must therefore examine the legislative scheme to determine whether the legislativeintent was to recognize the superior expertise of the Board or the courts on matters forming the subject of an appeal pursuant to s. 470. [86] The Act is a broad statute that covers a vast array of municipal government issues. The Board at issue here is acomposite assessment review board, created pursuant to s. 454 of the Act with jurisdiction to only hear complaints about certainassessments by taxpayers and assessed persons, and to deal only with the issues listed in s. 460(5) of the Act.

The Alberta legislaturedelegated to other boards and administrative decision makers the simultaneous task of interpreting and applying provisions of the Act,such as the Municipal Government Board (s. 486); growth management boards (s. 708.02); the Minister of Municipal Affairs (in thecontext of the assessment provisions of the Act, see ss. 317 to 325, 370, 381, 390, 409.3, 425.1, 436.23, 452, 453 to 457, 476.1, 484.1,514 to 517, 527.1 and 570 to 580); the chief administrative officer of each mun

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