Sam Slipiec - v. -, 2013 SKPC 113

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2013 SKPC 113 Date: July 19, 2013 File: 2013-4 Location: Melfort _____________________________________________________________________________ Between: Sam Slipiec - and - R.M. of Willow Creek Ronald N. Saretzky For the Plaintiff Melvin R. Annand, Q.C. For the Defendant _____________________________________________________________________________ JUDGMENT J. PLEMEL , J _____________________________________________________________________________ INTRODUCTION [ 1 ] The Plaintiff claims he was taxed at an excessive rate by the Defendant in 2009 and 2010 and that he is therefore entitled to be reimbursed.

[ 2 ] The Defendant rural municipality (R.M.) has brought an application to strike the Plaintiff’s claim on the basis that it discloses no reasonable cause of action. It argues that this Court has no jurisdiction to decide on issues of municipal tax enforcement covered by The Municipalities Act [1] (the Act). This judgment deals only with that issue. [ 3 ] For reasons which follow, I find that this Court is without jurisdiction to hear and determine the issues raised in the Plaintiff’s Statement of Claim and I therefore dismiss his claim. BACKGROUND [ 4 ] Mr. Slipiec owns land with two residences located on it.

His brother occupied the second home until 2006 when he passed away. Both of the homes were exempt from residential taxes due to a farming exception. Upon his brother’s passing, Slipiec maintained the home but states that he did not allow the home to be occupied by anyone on a permanent basis. [ 5 ] From 2006 to 2008, the R.M. maintained the tax exempt status for the second home. However, in 2009, the R.M. began to charge residential tax on it, thereby removing part of the tax exemption status that was previously in place.

This change was due to the R.M.’s belief that the second home was being occupied by someone. [ 6 ] The Plaintiff’s claim against the municipality therefore deals with the taxation years of 2009 and 2010, when the tax exempt status was removed. The Plaintiff alleges that he was not sent a notice of assessment from the R.M. in 2009 or 2010, a requirement under section 216(1) of The Municipalities Act. [ 7 ] The R.M. states that it mailed a notice of assessment to Mr.

Slipiec in 2009 and that it followed proper procedures regarding tax assessment and notice for both years in question. [ 8 ] In 2011, the Plaintiff received a notice of assessment and appealed that one to the administrative bodies provided for in the Act within the allotted time for appeals.

A decision was rendered in his favour, finding that the property was exempt from taxation as it was not occupied as a residential property. [ 9 ] As a result of the R.M.’s threat to collect outstanding 2009 and 2010 taxes, the Plaintiff paid the amount assessed for those years on or about October 2012, but states that he did so in protest. [ 10 ] The Plaintiff now seeks repayment of $7,292.25, being the taxes, penalties and costs he paid to the R.M. for the 2009 and 2010 years. He claims an additional $250.00 as fees he paid to successfully appeal his 2011 assessment to the Municipal Appeal Board.

ISSUE [ 11 ] Does this Court have jurisdiction to hear the Plaintiff’s claim? POSITION OF THE PARTIES [ 12 ] In its argument that this Court has no jurisdiction in this case, the Defendant states that The Municipalities Act contains a complete code regarding appeal provisions for assessment matters. The first level of appeal is to the Board of Revision and the next is to the Saskatchewan Municipal Board. Section 40(1) of The Municipal Board Act [2] states that its board decisions are final, and that “no

order, decision or proceeding of the board shall be questioned or reviewed, restrained or removed by prohibition, injunction, certiorari or any other process or proceeding in any court.” [ 13 ] The Plaintiff argues that since the Defendant did not send him a notice of assessment as required by section 216(1) of The Municipalities Act , he could not appeal the assessment. He could not appeal something that he had no knowledge of. He argues that the Defendant’s failure to comply with the notice requirement allows him to take action in this Court, notwithstanding section 40(1).

LEGISLATION [ 14 ] Relevant sections of The Municipalities Act are: Section 214 (1) Except as provided in subsection (2), each municipality shall prepare assessment notices for all assessed property shown on the assessment roll of the municipality.

(2) A council may, by bylaw, dispense with the preparation of assessment notices if the assessed value of the property: (

a) has not changed from the previous year’s assessed value; or (

b) the increase or decrease in assessed value does not exceed the lesser of: (i) $1,000 from the previous year’s assessed value; and (ii) 1% of the previous year’s assessed value. [ 15 ] The Municipalities Act directs that the appropriate method of providing a taxpayer with a notice of assessment is: Section 216 (1) A municipality shall send the assessment notices to the assessed person within 15 days after the assessment roll is complete.

(2) The assessment notice and the tax notice relating to the same property may be sent together or may be combined on one notice.

(3) A copy of the assessment notice may be sent by any means to the mailing address of the assessed person, or if requested by an assessed person, by facsimile or electronic mail at a number or address provided by the person.

(4) If the mailing address of the assessed person and the assessed property is unknown, the municipality shall retain the assessment notice subject to the municipality’s record retention and disposal

schedule pursuant to

section 116, but the assessed notice is deemed to have been sent to the assessed person. [ 16 ]

Section 217 of The Municipalities Act deals with the possibility of inadequate notice by allowing the publishing of a notice to operate as a substitute for personal notice: Section 217 (1) Within 15 days after completion of the assessment roll, a municipality shall annually publish in the Gazette, and in one issue of a newspaper or in any other manner considered appropriate by the municipality, a notice stating:

a) that the assessment notices have been sent;

b) that a bylaw pursuant to

section 214 has been passed; and

c) the last date on which appeals may be lodged against the assessment.

(2) All assessed persons are deemed to have received their assessment notices as a result of the publication mentioned in subsection (1). [ 17 ] The Plaintiff’s claim does not plead non-compliance with the publication requirements of the Act . Furthermore, the Defendant states that it has published notices as required.

Section 217(2) demonstrates a minimal duty imposed on the municipality regarding giving of notice. [ 18 ] The Municipalities Act states at section 213(1) that the “assessor shall make the assessment roll available for public inspection during normal business hours from the day of completion of the assessment roll to the last day for lodging an appeal”. This provision demonstrates that taxpayers may seek out this information.

[ 19 ] Finally,

section 258 says that:

(1) On or after January 1 of the year to which the assessment roll relates, the assessor shall make returns to the agency, in the forms and at times required by the agency, showing (

a) the particulars of any alterations that have been made in the assessment roll since it was last confirmed by the agency; and (

b) any additional information related to the particulars mentioned in clause (

a) that may be required by the agency.

(5) On receipt of the agency’s certificate (

b) the roll as finally completed and certified is valid and binding on all parties concerned as at the date of the confirmation, notwithstanding any defect or error committed in or with respect to it or any defect, error or misstatement in any notice required by this Act or any omission to deliver or to transmit any notice. [ 20 ]

Section 258 thus provides for the possibility of an “omission to deliver or transmit any notice” but says that the roll is complete, valid and binding as at the date of confirmation. [ 21 ] There is some mention of jurisdiction of administrative tribunals and courts in The Municipalities Act as well as The Municipal Board Act . These provisions include: -

Section 226 of The Municipalities Act: a person is entitled to appeal the assessment to the municipalities Board of Revision within 30 days after the day on which the notice of assessment is mailed. - Section 296(1) of The Municipalities Act: “If a person considers that an error has been made in determining that any property is liable to taxation, that person may appeal that matter to the Board of Revision”. -

Section 246 of The Municipalities Act: a person may further appeal a decision of the Board of Revision to the Saskatchewan Municipal Board. -

Section 16 of The Municipal Board Act: “(1) the Board shall hear and determine: (

a) assessment or classification appeals pursuant to … The Municipalities Act ; and (

c) appeals regarding property tax exemptions provided pursuant to any Act ”. - Section 20(1) of The Municipal Board Act : the Board is given “authority to hear and determine any question of fact or law as to matters within its jurisdiction”. -

Section 33.1 of The Municipal Board Act: a person affected by a decision of the Board has a further right to appeal to the Court of Appeal on questions of law or jurisdiction, with leave of the Court. - There is also a narrow right in

section 16.1 of The Municipal Board Act to make application to the Court of Queen’s Bench respecting the assessment manual relied or any rule or order of the Saskatchewan Assessment Management Agency. - It may also be relevant that the possibility for a civil action is acknowledged in the legislation, but only in relation to the municipality’s collection powers and not in relation to taxpayers’ claims.

Section 368 (1) of The Municipalities Act says “except as provided in this or any other enactment, an amount owing to a municipality may be collected by civil action for debt in a court of competent jurisdiction”. [ 22 ] None of these provisions mention the possibility of bringing a claim to the Provincial Court but instead provide a complete appeal structure within the statute for managing complaints relating to taxation. JURISPRUDENCE [ 23 ] The Plaintiff argues that common law principles give a right of access to the courts when strict compliance with notice requirements to a taxpayer have not been met.

He refers this Court to City of Ottawa v. R.M.A. Restaurants (Ottawa) Ltd. [3] ; Nicholls v. Cumming [4] ; Petty Habour-Maddox Cove (Town) v. Peerless Fish Co. [5] ; and Sweeny v. Smiths Falls (Town) [6] . [ 24 ] However, modern case law supports the view that courts in Saskatchewan lack jurisdiction in matters relating to the tax assessment process since legislative amendments, such as I have referred to, have introduced a comprehensive scheme for tax assessment appeals to be heard by administrative tribunals and not the courts. [ 25 ] One example is Saskatoon Fresh Pack Potatoes Ltd. v.

City of Saskatoon and Saskatchewan Assessment

Management Agency [7] . There the Plaintiffs made a claim in negligence due to the municipality ’ s overstatement of taxes owed by the Plaintiff. Several helpful quotes demonstrate the Court ’ s refusal to deal with this matter for a lack of jurisdiction: Counsel argued further that the detailed provisions of The Urban Municipalities Act, 1984 , and The Municipal Board Act amply support the finding that the legislature has enacted exhaustive and comprehensive terms that leave no room for resort to the common law, or to courts of original jurisdiction.

I agree. [8] To allow taxpayers to commence actions to have past assessments reviewed by the courts would cause chaos in the tax assessment regime in this province. Further, it is crucial that the process set out in the legislation be certain and final. [9] Where, as here, the sole issue is whether the plaintiff ’ s property has been valued too high and therefore whether too much tax was paid, then the plaintiff is limited to the appeal process that has been established by legislation.

Whether the assessments are right or wrong, the court cannot review the city assessor ’ s decision. [10] [ 26 ] Saskatoon Fresh Pack Potatoes thus states that the Court cannot intervene in the jurisdiction afforded to the Board by the statute. It also raises the public policy concern for having certainty and finality by not allowing past taxation problems to be raised in Court due to the municipality’s reliance on the year end assessments when they are entered into the rolls. [ 27 ] In Beatrice Miller v.

City of Moose Jaw [11] , there was a miscalculation in the tax amounts and the plaintiff overpaid the city and school board as a result. The Court held that the taxpayer ’ s only recourse was to appeal to the tribunals provided by legislation and that, in the absence of improper motive by city employees, the Court could not intervene. [12] [ 28 ] Pacific Regeneration Technologies Inc. v. Rural Municipality of Buckland No. 291 [13] , a case with some factual similarities to the present case , involved a claim brought by PRT for payment of taxes that were incorrectly assessed.

The Plaintiff argued common law principles which supported its right to commence legal action in the courts. However, Rothery J. disagreed, holding that the legislators intended a change in the substance of the law by stating that appeals on matters of tax exemption must be by way of statutory appeal procedures set out in the act. [14] Therefore, she struck the Plaintiff ’ s claim as disclosing no reasonable cause of action. [15] [ 29 ] Finally, in Robert Stewart and Brenda Stewart v.

R.M. of Flett ’s Springs No. 429 [16] , the Plaintiffs brought a claim because they were taxed on neighbouring land that was not owned by them. The improper taxation occurred every year from 1997 to 2006. The Court accepted that legislation left no room for resorting to common law principles or courts and to allow judicial review would defeat the certainty and finality of municipal tax collection [17] . CONCLUSION [ 30 ] This Court does not have jurisdiction to hear the Plaintiff’s claim and it is therefore dismissed. There is no order as to costs. J. Plemel, J [1] S.S. c. M-36.1.

[2] S.S. M-23.2. [3] City of Ottawa v. R.M.A. Restaurants (Ottawa) Ltd., [1980] O.J. No. 3097. [4] Nicholls v. Cumming (1877), 1877 CanLII 1 (SCC), 1 S.C.R. 395. [5] Petty Habour-Maddox Cove (Town) v. Peerless Fish Co., 2005 NLTD 187. [6] Sweeny v. Smiths Falls (Town), [1895] O.J. No. 54. [7] Saskatoon Fresh Pack Potatoes Ltd. v. City of Saskatoon and Saskatchewan Assessment Management Agency, (SK KB), [1997] 3 W.W.R. 248. [8] Ibid at para. 8. [9] Ibid at para. 10. [10] Ibid at para. 13. [11] Beatrice Miller v.

City of Moose Jaw, (SK KB), [1998] 2 W.W.R. 499. [12] Ibid at para. 15. [13] Pacific Regeneration Technologies Inc. v. Rural Municipality of Buckland No. 491, 2000 SKQB 415. [14] Ibid at para. 16. [15] Ibid at para. 18. [16] Robert Stewart and Brenda Stewart v. R.M. of Flett’s Springs No. 429, 2009 SKPC 20, upheld in Queen’s Bench, 2009 SKQB 240. [17] Ibid at para. 8.