CANALTA REAL ESTATE SERVICES LTD., 101149013 SASKATCHEWAN LTD., OPTIMUS HOTELS LTD., 101107381 SASKATCHEWAN LTD., D3H HOTELS INC., 994552 N.W.T. LTD., 1799973 ALBERTA LTD., WEYBURN 8 MOTEL LTD., WYR HOTELS LTD. PLAINTIFFS/APPLICANTS - v. -, 2023 SKKB 221

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 221 Date: 2023 10 19 Docket: QBG-SA-00140-2021 Judicial Centre: Saskatoon ___________________________________________________________________________ BETWEEN: CANALTA REAL ESTATE SERVICES LTD., 101149013 SASKATCHEWAN LTD., OPTIMUS HOTELS LTD., 101107381 SASKATCHEWAN LTD., D3H HOTELS INC., 994552 N.W.T. LTD., 1799973 ALBERTA LTD., WEYBURN 8 MOTEL LTD., WYR HOTELS LTD.

PLAINTIFFS/APPLICANTS - and - CITY OF MELFORT, CITY OF YORKTON, TOWN OF KINDERSLEY, CITY OF ESTEVAN, CITY OF WEYBURN and SASKATCHEWAN ASSESSMENT MANAGEMENT AGENCY DEFENDANTS/RESPONDENTS Counsel: Samuel W. Edmondson for the applicants Dustin L. Gillanders for the respondents ___________________________________________________________________________ JUDGMENT CROOKS J. October 19, 2023 ___________________________________________________________________________ Overview [ 1 ] The within application relates to an appeal of property assessments under The Cities Act , SS 2002, c C-11.1 ,

and The Municipalities Act , SS 2005, c M-36.1 , with respect to accommodation properties, being motels and limited service hotels, located within the respondent cities and town. [ 2 ] The issue in this judicial review is the manner in which the Saskatchewan Assessment Management Agency [SAMA] calculated the disputed property assessments. Background [ 3 ] In Saskatchewan, SAMA provides property valuation services to various cities and rural municipalities. Under both The Cities Act and The Municipalities Act , all property (including land and improvements on the land) are assessed.

SAMA provides valuation services to the respondent Cities of Melfort, Yorkton, Estevan and Weyburn as well as the respondent Town of Kindersley. [ 4 ] Properties are not assessed individually but by mass appraisal through the collection of data for similar properties. SAMA relies on data, specifically income and expense information, from property owners to assist in developing the model on a four-year assessment cycle.

Once that information is collected, the assessment appraiser [Appraiser] selects the data which best represents typical market conditions within a particular time frame. [ 5 ] Property assessment consists of a relatively complicated series of calculations and, in the case of the subject accommodation properties, the “income approach” was utilized.

This approach requires SAMA to estimate the income that each property is expected to generate and then capitalize that income into an estimate of market value. [ 6 ] Through the collection and analysis process for this data, SAMA produces a detailed Market Report for accommodation properties.

This Market Report contains all the data used to develop the full model which was developed and applied to assess property values for each accommodation type [Accommodation Model]. [ 7 ] This process involves determining market rent (income), expenses, and an appropriate capitalization rate [Cap Rate], which occurs through analysis of actual property sales. There are three accommodation types: ACCOM_1 includes motels; ACCOM_2 includes limited service hotels; and ACCOM_3 includes full service hotels.

The Cap Rate for the Accommodation Model was calculated using the sales of accommodation properties within a specific timeframe. In this assessment period, there were four sales in the ACCOM_1 and ACCOM_2 groups that occurred between January 1, 2011 and December 31, 2014, and specifically three ACCOM_1 properties and one ACCOM_2 property.

These four sales were used to extrapolate the Cap Rate for this group which is then applied in the Accommodation Model. [ 8 ] The Cap Rate is necessary to calculate the final assessed value of the properties as it is required to convert the future anticipated benefits of a property’s ownership into an estimate of present value. It reflects the relationship between the income stream of a property and its sale price. The Cap Rate is then utilized to assess the value of a property. [ 9 ] Once property assessments are complete, assessment notices are sent to property owners.

Both property owners and cities/municipalities have the right to appeal to the local Board of Revision [Board], which then determines “if the Appellant provides sufficient evidence or compelling reasons to prove an error has been made by the Appraiser” (see the Board decision dated January 9, 2018, at para. 2). Appeals before the Board are similar to a trial at first instance, where each party may submit evidence for consideration. [ 10 ] Before the Board, the Applicants took the position that the room expense ratio [RER] of 3.89% was far too low. They advocated for an RER of 38.51% to be applied.

The Board concluded the RER applied in the Accommodations Model was in error and allowed the appeal. In their decision of January 19, 2018, the Board summarized the Applicants’ position at that stage: [22] Room expenses include wages for housekeeping staff, toiletries, linens, and other sundry items.

The Appellant does not accept that an expense value of 3.89% could be correct, recognizing that labour costs would represent a substantial component of room expenses. [23] The Appellant believes that wages for housekeeping staff were omitted or overlooked by the Appraiser in their development of the model such that their Room expenses would only be 3.89%.

The Appellant notes that their analysis of all other expenses, based on the information received from the Appellant, show median values for operating expenses and management expenses are quite similar to the median values used by the Appraiser, although they are not identical. The Appellant indicates that any minor differences are likely explained by the fact they were only provided with 6 records rather than the 18 records used by the Appellant. [24] The alleged omission of housekeeping wages which do not appear to be present in the Appraiser’s model results in an unusually high NOI.

When these wages are properly included in the analysis, the median NOI is reduced from 48.65% to 23.79%. The Appellant openly acknowledges that this analysis may not be perfect simply because they were not provided with the entire dataset used by the Appraiser, requested by the Appellant, and ordered to be disclosed by the Board. [ 11 ] The Board admonished the Appraiser’s failure to disclose all information previously ordered.

Ultimately, however, the Board ordered a change to the assessed value of each of the properties and provided the following conclusory comments: [36] The Board has reviewed the model created by the Appellant. It notes, with interest, that the median Operating Expenses, and median Management expenses, are within one or two percentage points in the Appellant’s analysis when compared against the model developed by the Appraiser.

These small differences can easily be attributed to the fact that the Appellant was forced to use 6 records in their analysis rather than the full array of 18 records used by the Appraiser. [37] Room expenses, however, are substantially different. Data received by the Appellant demonstrates Room expenses of 38.51% which is nearly 10 times greater that the 3.89% used in the Appraiser’s model. The Appraiser could not offer any conclusive explanation or evidence for such a substantial difference.

If housekeeping wages were recorded in Operating Expenses, as suggested by the Appraiser, the Board would expect to see a substantial, and off-setting, difference in this item between the Appellant’s analysis and the Appraiser’s model, yet it does not. On the surface, and without the ability to review the full data used by the Appraiser, the Board can only conclude

that housekeeping wages were somehow overlooked or omitted by the Appraiser. [38] In the absence of full disclosure, the Board must support the Appellant’s analysis based on the evidence provided to the Appellant, despite it being incomplete. The resulting NOI generated by the Appellant’s analysis is further supported by the fact that it appears to fall within the range expected by the hotel industry in general. [39] This appeal is allowed both as a result of the error in law as well as the error in the NOI demonstrated by the Appellant.

The assessed value of the subjected property shall be $3,049,600 using an NOI of 23.79% as suggested by the Appellant. … [ 12 ] Board decisions may be further appealed to the Saskatchewan Municipal Board, Assessment Appeals Committee [Committee] by either the property owner or the city / municipality. This level of appeal is heard “on the record” with new evidence permitted in limited circumstances. [ 13 ] SAMA appealed the Board’s decision to the Committee.

In their decision of December 10, 2019, the Committee expressed the view that SAMA had complied with the disclosure order, but confirmed the appeal did not depend on this point. Instead, they focussed on how housekeeping expenses were accounted for within the models proposed by the parties. The Committee noted they had no confidence in the Board’s finding the Net Operating Income [NOI] should be 23.79%.

Instead, they focussed on utilizing the RER of 38.51% throughout the calculation to reach an understandable result. [ 14 ] The Committee ultimately provided the following remittal directions: [42] … The Committee orders SAMA to follow the Board’s Order and recalculate the NOI for the subject properties using a room expense of 38.51% of EGI. We further order SAMA to recalculate the Cap Rate based on the original sales array, using the recalculated NOI, and provide a sales analysis to support the calculations. If the Cap Rate changes, the recalculated Cap Rate shall be used to establish the final assessed values.

The final assessed values shall not be more than the original assessed values listed in paragraph [1]. [ 15 ] Finally, pursuant to The Municipal Board Act , SS 1988-89, c M-23.2 , any person affected by an order, decision or determination of the Committee may apply for leave to the Court of Appeal to appeal against the order, decision or determination of the Committee on a question of law or jurisdiction.

Generally, SAMA represents the city or municipality at all levels of an appeal, whether before the Board, Committee or Court of Appeal. [ 16 ] In the within matter, the Applicants appealed their respective assessed values to the Board. The basis for the appeal was alleged errors in the NOI. One of the factors used in determining the NOI is the RER, which is based on expenses such as housekeeping and room supplies. The NOI is then used to arrive at the Cap Rate.

In this way, an adjustment to the RER would result in an adjustment of the Cap Rate. [ 17 ] In this case, the Market Report combined the data from all stratifications to develop a median RER of 3.89% which was used in calculations across all accommodation properties such that this single RER was used to calculate the Cap Rate regardless of property classification or location. [ 18 ] While the appeal related only to ACCOM_2 properties, the underlying sales array included one ACCOM_2 and three ACCOM_1 properties.

When SAMA subsequently applied the direction of the Committee, they applied the revised RER of 38.51% throughout the model – not just to the ACCOM_2 property in the sales array, but also made corresponding recalculations to the three ACCOM_1 properties in the sales array. [ 19 ] What this effectively means is that any change to the data will result in changes throughout the calculation and impact the assessed value of a property, from which property tax is determined.

This is why the revision to the RER is significant – it impacts the sequence of calculations and ultimately the assessed value of a property. [ 20 ] It is this approach the Applicants take issue with.

The Applicants’ position is that the appeal was limited to ACCOM_2 properties and, as such, no adjustment should have been made to the ACCOM_1 properties when the recalculation was conducted, and specifically the revised RER of 38.51% should not have been applied to determine the Cap Rate for the ACCOM_1 properties. [ 21 ] If the revised RER were applied only to the ACCOM_2 property in the sales array and not the three ACCOM_1 properties, the result would be more favourable to the property owners.

In this way, the application of the Committee’s direction becomes financially significant. [ 22 ] On January 9, 2020, SAMA wrote to the Committee explaining their recalculation process. SAMA confirmed they calculated the Cap Rate for all properties in the entire sales array, including both ACCOM_1 and ACCOM_2 properties, using an RER of 38.51%. This ultimately reduced the median Cap Rate utilized in the Accommodation Model for these properties from 14.45% to 9.79%. [ 23 ] The Applicants wrote to the Committee on January 22, 2020, objecting to SAMA’s recalculations.

The Applicants’ position is that the appeals to the Board and the Committee related to errors in the Accommodation Model with respect to ACCOM_2 properties only. They note there were no errors identified in the Accommodation Model parameters, including the RER, as it pertains to ACCOM_1 properties. They argue that the RER of 38.51% is applicable only to ACCOM_2 properties in the sales array and that the three ACCOM_1 properties in the sales array should not have been revised using the new RER.

This would result in a Cap Rate of 12.36%. [ 24 ] The Committee determined that it did not have jurisdiction to consider the submission of the Applicants. [ 25 ] Both SAMA and the Applicants sought leave to appeal the Committee decision to the Court of Appeal with both leave applications denied by Caldwell J.A. on October 9, 2020.

[ 26 ] On October 15, 2020, the Applicants provided correspondence to SAMA with respect to the recalculation of the assessed value of these properties.

They raised the issue of procedural fairness and stated their position that SAMA was not only obligated to provide disclosure of the facts and methodology they intended to utilize in recalculating the assessed values, but also to accept further submissions prior to implementing the order of the Committee. [ 27 ] In response, on October 19, 2020, SAMA indicated there was no legislative provision to support this request and, in any event, the request was moot as the recalculations had been completed and submitted to the relevant cities. [ 28 ] The Applicants then brought the within application for judicial review, seeking intervention by this Court with respect to the way SAMA conducted the recalculation of property assessment values.

The remedy sought is to quash the remittal of reassessed property values by SAMA and instead utilize the Applicants’ proposed assessed property values. This would require the Respondent cities and town to correct and revise their records and accounts. Legal Framework [ 29 ] In July 2021, the Saskatchewan Court of Appeal rendered a decision with significant impact on the recourse taxpayers have when they are successful in a property tax assessment appeal to the Committee.

If a taxpayer is of the view that SAMA has not complied with the Committee’s directions, they can seek a remedy through a judicial review of SAMA’s actions. This guidance is set out in Altus Group Limited v Estevan (City) , 2021 SKCA 101 [ Altus CA ]: 82 As it stands, I have concluded that there is no statutory path for a taxpayer to obtain a remedy when they allege that SAMA has not complied with remittal directions after a successful appeal to the Committee.

While the taxpayer may again appeal in a subsequent tax year, that potential future remedy provides cold comfort to a person who, despite their success on appeal, cannot realize the benefit in the year to which the appeal related. However, this does not mean that actions taken, or not taken, by SAMA after the Committee remits a matter to it with directions are not subject to any oversight. Judicial review is available to fill this gap. … 85 The rule of law demands a remedy when a state actor does not comply with the law. This includes a direction from the Committee upon remittal to SAMA.

Judicial review of SAMA's actions or inactions is available to a party who is dissatisfied with SAMA's response after a remittal.

While judicial review may not be an attractive route for taxpayers who believe SAMA has not complied with remittal directions from the Committee, absent legislative amendment, it appears to be the only option available for the tax year that was the subject of an appeal. [ 30 ] I echo the recent comments of Baldwin J. in Altus Group Ltd. v Saskatchewan Assessment Management Agency , 2023 SKKB 129 [ Altus KB ] , where she stated: 16 The property assessment regime in Saskatchewan has not historically been examined in this Court.

This state of affairs can be contrasted with the experience of the Court of Appeal for Saskatchewan which routinely hears and determines statutory appeals relating to property assessment. I do not intend to devote much space in this decision to a study of assessment law and practice as, other than dealing with the unique aspects of the situation before me, I do not have anything to add to the excellent treatise on the subject found in Affinity Holdings Ltd. v Shaunavon (Town) , 2022 SKCA 83 , 474 DLR 94 th ) 71 [ Affinity ]. … 18 Pursuant to Rule 3-49(1)(

g) of The Queen's Bench Rules , an action may be started by originating application if the remedy claimed is the judicial review of a decision, act or omission of a person or body. 19 Altus CA at para 85, provides that a taxpayer who is "dissatisfied with SAMA 's response after a remittal" may seek judicial review of " SAMA 's actions or inactions".

The word "decision" does not appear in Altus CA as it pertains to actions taken, or not taken, by SAMA following a remittal and there is no mention of the revised property assessments prepared by SAMA in this portion of Altus CA . … 22 Notwithstanding the language used, or not used, in Altus CA and by the parties, it is clear that property assessments constitute decisions of property assessors: Affinity .

In the analysis that follows, I will treat the revised property assessments as decisions and the accompanying response documents and evidence from SAMA as the expressed reasons for those decisions describing the actions taken by SAMA , and thereby identifying the actions not taken by SAMA , in response to the decisions of the Committee.

In this way, the aspects of SAMA 's decision-making in response to the Committee's remittal decisions can be considered within a rubric which meshes with established case law on judicial review. 23 As noted above, the Court of Appeal in Altus CA scrupulously avoids reference to the decisions or revised assessments of SAMA in the portion of the court's decision relating to judicial review, referring instead to SAMA 's actions or inactions. This is no doubt by design rather than by coincidence.

I therefore conclude that the judicial review contemplated by the Court of Appeal in Altus CA relates to the actions taken and not taken by SAMA and does not extend to SAMA 's decisions - the revised property assessments - and I will proceed on this basis. [ 31 ] It is against this legal framework that the application comes to this Court for review. Issues [ 32 ] The following issues arise on this application for judicial review:

1. What is the appropriate standard of review? 2. Did SAMA act reasonably? 3. Were the Applicants denied procedural fairness? 1. What is the appropriate standard of review? [33] The parties agree that SAMA’s

interpretation and application of the remittal directions should be reviewed on astandard of reasonableness. [34] As such, the onus is on the Applicants to establish that SAMA’s actions were unreasonable.

In Canada(Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, [2019] 4 SCR 653, the Supreme Court of Canada consideredreasonableness not only in the context of the decision-making process, but also the outcomes of that process: 82 Reasonableness review aims to give effect to the legislature's intent to leave certain decisions with an administrative body whilefulfilling the constitutional role of judicial review to ensure that exercises of state power are subject to the rule of law: see Dunsmuir[2008 SCC 9], at paras. 27-28 and 48; Catalyst Paper Corp. v.

North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5, at para.10; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, (SCC), [1997] 3 S.C.R. 3,at para. 10. 83 It follows that the focus of reasonableness review must be on the decision actually made by the decision maker, including both thedecision maker's reasoning process and the outcome. The role of courts in these circumstances is to review, and they are, at least as ageneral rule, to refrain from deciding the issue themselves.

Accordingly, a court applying the reasonableness standard does not ask whatdecision it would have made in place of that of the administrative decision maker, attempt to ascertain the "range" of possibleconclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the "correct" solution tothe problem. The Federal Court of Appeal noted in Delios v.

Canada (Attorney General), 2015 FCA 117, 472 N.R. 171, that, "asreviewing judges, we do not make our own yardstick and then use that yardstick to measure what the administrator did": at para. 28; seealso Ryan [2003 SCC 20], at paras. 50-51. Instead, the reviewing court must consider only whether the decision made by theadministrative decision maker -- including both the rationale for the decision and the outcome to which it led -- was unreasonable. [35] The focus then shifts to whether SAMA acted reasonably in applying the remittal directions of the Committee. 2.

Did SAMA act reasonably? [36] The Board concluded that there was a substantial difference between the Applicants’ data which produced anRER of 38.51% and the Appraiser’s data which produced an RER of 3.89%, which was the value initially applied throughout theAccommodation Model. [37] The Committee determined the RER needed to be adjusted. Remittal directions were set out at paragraph 42 ofthe Committee’s decision: [42] … The Committee orders SAMA to follow the Board’s Order and recalculate the [Net Operating Income] for the subject propertiesusing a room expense of 38.51% of [Effective Gross Income].

We further order SAMA to recalculate the Cap Rate based on the originalsales array, using the recalculated [Net Operating Income], and provide a sales analysis to support the calculations. If the Cap Ratechanges, the recalculated Cap Rate shall be used to establish the final assessed values. The final assessed values shall not be more thanthe original assessed values listed in paragraph [1]. [38] When the matter was remitted to SAMA, they utilized an RER of 38.51% in all calculations throughout theAccommodation Model, including calculations related to all properties in the sales array.

While the appeal only related to ACCOM_2properties, the calculation of the Cap Rate for ACCOM_1 properties becomes significant because three of the four properties used in thesales array were ACCOM_1 properties. [39] SAMA notes the RER is a constant figure, applied to all properties in the sales array regardless of classificationwithin the Accommodation Model. SAMA’s position is that it would knowingly produce an inaccurate result were they to continue toapply an incorrect RER within the formula.

Instead, SAMA interpreted the Committee’s Order as a direction to substitute the 38.51%RER throughout the entire formula, including using this value to calculate the Cap Rates for all properties in the original sales array. [40] This is what SAMA did, and they subsequently provided the rationale for the resulting calculations and revisedassessments to the Committee on January 9, 2020. [41] The Applicants take issue with this approach. In their view, only the ACCOM_2 property should have had theCap Rate recalculated using the RER of 38.51%.

The Applicants’ position is that when the 3.89% RER was found to be in error, this wasbased on the actual performance of the six ACCOM_2 properties for which disclosure was provided. As the data they utilized inreaching an RER of 38.51% was solely in relation to ACCOM_2 properties, that is the only stratum of properties to which the RER of38.51% should be applied.

As the income or expenses for the sale of the ACCOM_1 properties was not challenged, those calculationsshould not be changed. [42] The Applicants’ proposed approach is not consistent with the Accommodation Model, where the same RER is aconstant applied throughout the formula. The error in RER arose because housekeeping wages had not been included as expenses.

However, because the same RER is universally applied to all accommodation properties, it is reasonable that this error was made notonly for ACCOM_2 properties, but also for ACCOM_1 properties as the same RER is universally applied throughout theAccommodation Model. This

interpretation is reasonably drawn from the comments and direction of the Committee. [43] Further, while the Applicants take the position that the RER should only have been adjusted with respect to theACCOM_2 properties, as those were the only properties subject to appeal, this is not consistent with the direction of the Committee.

Inthe Committee’s decision, they state: [37] … The revised room expense needs to be carried forward throughout the entire model by calculating a revised [Net OperatingIncome] and a revised Cap Rate. [38] The formula to determine the assessed value in the accommodations model contains several components necessary to ensure theassessed value of a property achieves the [Market Valuation Standard]. The Board ordered a change to one component of that formula.The resulting change to the models’ [Net Operating Income] directly affects the Cap Rate and a calculation is required to determine arevised Cap Rate.

The consistent application of the formula as a whole ensures equity. … [40] We find the [Market Valuation Standard] and equity for the subject properties have not been achieved because the assessed valueshave not been adjusted to reflect market conditions through the application of a revised Cap Rate. [41] We will request SAMA follow through the complete formula and calculate a revised Cap Rate based on a room expense of 38.51%of [Effective Gross Income]. [Emphasis added] [44] It is noteworthy that the Committee’s directions left significantly less discretion in conducting the recalculationthan that provided in Altus KB.

Here, the specific RER to be used was directed by the Committee. The sole issue is whether the RER of38.51% should be utilized only for ACCOM_2 properties or whether it should be applied throughout the entire Accommodation Model. [45] The Committee acknowledged there were disputes over disclosure of sales records and data. However, theCommittee ultimately determined that SAMA had complied with the Board’s disclosure order and, more significantly, that the appealdid not depend on this point.

The Committee was satisfied that the RER of 38.51% should be applied consistently throughout thecomplete formula to calculate a revised RER. [46] In their letter of January 9, 2020, SAMA outlined their approach to the Committee’s direction, noting theyamended the RER to 38.51% and revised the Cap Rate to be 9.79% as a result. While SAMA acknowledged the revised Cap Rate may be“skewed” due to the limited use of the six observations utilized by the Applicants, the Board and the Committee were both aware of thelimited data disclosed and relied upon in calculating the revised RER.

Despite that awareness, the Committee did not require SAMA torecalculate the RER or to derive a new Cap Rate model using the complete data set, but rather the order on remittal was to apply aspecific RER in the recalculation. [47] The Committee specifically directed that the revised RER of 38.51% needed to be “carried forward throughoutthe entire model.” It was reasonable for SAMA to amend the Cap Rate for the ACCOM_1 properties rather than leave them calculatedon a knowingly incorrect RER.

This would not reflect the consistency and completeness directed by the Committee. [48] When the Committee’s directions are read as a whole, the application of the revised RER throughout the entireAccommodation Model is reasonable. 3. Were the Applicants denied procedural fairness? [49] The Applicants invite the Court to determine there was a breach of procedural fairness in that they were notgiven an opportunity to provide further submissions prior to SAMA’s recalculation of assessed values ordered by the Committee. [50] Procedural fairness is a central principle of administrative law.

Issues of procedural fairness generally attract astandard of review of correctness.

In Feng v Saskatchewan (Economy), 2020 SKCA 6, the Court of Appeal stated: 43 Where an appellate court considers allegations of breach of procedural fairness, the standard of review is one of correctness: Canada(Citizen and Immigration) v Khosa, 2009 SCC 12at para 43, [2009] 1 SCR 339; Eagle's Nest Youth Ranch Inc v Corman Park (RuralMunicipality), 2016 SKCA 20at paras 21-26, 395 DLR (4th) 24; and Risseeuw v Saskatchewan College of Psychologists, 2019 SKCA9at paras 63-64, [2019] 2 WWR 452. 44 That said, subject to legislative override, "The existence and content of the duty of fairness is a question of law that is governed bythe five non-exhaustive factors set out in Baker v Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2SCR 817 at paras 21-28" (Phillips Legal Professional Corporation v Vo, 2017 SKCA 58at para 121, [2017] 12 WWR 779 [Vo]). 45 The fact correctness is the applicable standard does not mean the procedure followed by a decision-maker must be measured againsta singular set of processes and steps.

Rather, the content of procedural fairness in any given case is "eminently variable" and fact andcontext specific (Knight v Indian Head (School Division), (SCC), [1990] 1 SCR 653 at 682 [Knight]): also see Baker atpara 21 and Vo at para 121. As this Court recently pointed out in Mercredi v Saskatoon Provincial Correctional Centre, 2019 SKCA86at para 28 [Mercredi], a reviewing judge must engage in a fresh inquiry to determine what degree of procedural fairness is required inthe circumstances of each case and then determine whether those requirements were ultimately met. This is particularly so when the

statute leaves the decision-maker with the ability to choose its own procedures: "The ultimate issue is always whether the processaccords with the underlying values reflected by the duty of fairness" (Mercredi at para 29): also see Baker at para 28. 46 As noted, to assess what that content might look like in any given case, Baker identifies five, non-exhaustive factors a reviewingcourt should weigh in determining the extent of the duty of fairness.

As seen in Baker, underlying these factors is the notion that thepurpose of the participatory rights encompassed within the duty of procedural fairness is to ensure that administrative decisions are madeusing a fair and open procedure, appropriate to the decision being made and its statutory, institutional and social context, with anopportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker. [51] On January 22, 2020, the Applicants wrote the Committee objecting to SAMA’s revised assessments.

In theirletter, the Applicants suggest that procedural fairness dictates they have an opportunity to provide submissions on how SAMA finalizesthe recalculations after the remittal directions are issued. Specifically, the Applicants propose there is an obligation on the Appraiser toallow the Applicants to make submissions on the methodology and information SAMA intends to use prior to finalizing therecalculations and resulting property assessments. [52] In my view, the process proposed by the Applicants would effectively give rise to a hearing de novo. This is notthe purpose of remittal.

At this stage, it is for SAMA to interpret and apply the remittal directions of the Committee. If the taxpayer doesnot agree with how SAMA has interpreted or applied the Committee’s direction, their recourse is not to recommence the hearing process,but to bring an application for judicial review. At the stage where remittal directions have been provided, the Appraiser’s obligation is toprovide a reasonable response within the constraints of that Order. [53] I again note the comments of the Court of Appeal in Altus CA: 84 The Legislature has set up a comprehensive code dealing with municipal tax matters.

However, if, outside of the procedures that areprovided for in that code, a person charged with a statutory obligation - such as SAMA in response to remittal directions - acts in anunlawful way, judicial review is available. It is my view that the Legislature did not intend that a person who believes that SAMAproceeded on an unlawful basis would have no remedy. To the contrary, the Legislature would assume that SAMA would act in a lawfulmanner, but that, if it failed to do so, taxpayers would have recourse.

Sections 53 and 54 of the MBA [The Municipal Board Act, SS 1988-89, c M-23.2] have been interpreted in light of the Legislature's awareness of the availability of the Court of Queen's Bench to superviseSAMA's exercise of its statutory authority. 85 The rule of law demands a remedy when a state actor does not comply with the law. This includes a direction from the Committeeupon remittal to SAMA. Judicial review of SAMA's actions or inactions is available to a party who is dissatisfied with SAMA's responseafter a remittal.

While judicial review may not be an attractive route for taxpayers who believe SAMA has not complied with remittaldirections from the Committee, absent legislative amendment, it appears to be the only option available for the tax year that was thesubject of an appeal. [54] Remittal does not give rise to a rehearing. Rather, it is for SAMA to take the directions from the Committee andapply them.

Recourse is then an application by way of judicial review and not through submissions on how the remittal or direction ofthe Committee is to be implemented. [55] Were a taxpayer to be given additional opportunity for submissions to SAMA following an appeal to theCommittee, it would effectively turn into another hearing and decision, possibly with another opportunity to access the Board, theCommittee or the Court of Appeal on the newest application.

To do so would be contrary to the timely, efficient and effective method forchallenging assessments as intended through property tax assessment legislation (see Altus CA at para 68). [56] Instead, if the taxpayer does not agree that SAMA has reasonably interpreted and applied the remittal directions,they have an opportunity to challenge the recalculation precisely through the manner the Applicants engaged – judicial review.

This isthe precise path contemplated in Altus CA. [57] In Affinity Holdings Ltd. v Shaunavon (Town), 2022 SKCA 83, 474 DLR (4th) 71, the Court of Appealcommented on the unique nature of an assessor’s authority in providing justification for property assessment: 91 Administrative bodies typically give reasons for a decision that explain how and why the decision was made, thereby showing theaffected parties that it was made in a fair and lawful manner.

Where they are provided, reasons shield against arbitrariness as well as theperception of arbitrariness in the exercise of public power (Congrégation des témoins de Jéhovah [2004 SCC 48], at paras 12 and13; Baker [ (SCC), [1999] 2 SCR 817] at para 39).

In property assessment, however, the process of public justificationof an exercise of state power is tempered because assessors are arguably not required to give reasons outside the confines of anassessment appeal. [Emphasis added] [58] Further, allowing a taxpayer to make submissions on recalculation would impose a positive obligation on anAppraiser beyond that permitted in the first instance or contemplated by the legislation.

In both The Cities Act (s. 171) and TheMunicipalities Act (s. 201), the legislation is permissive in that an assessor “may” request information in exercising their role; however, itis not mandatory. To impose an obligation on the Appraiser to seek and receive submissions or evidence would be contrary to the intentof this legislative scheme and would expand the obligations of the Appraiser beyond those intended.

Instead, the Appraiser’s obligationat this stage is to follow the direction of the Committee. [59] In Saskatoon Co-operative Association Limited v Saskatchewan Joint Board, Retail, Wholesale and DepartmentStore Union, 2016 SKCA 94, 484 Sask R 157, the Court of Appeal summarized the factors to be considered in determining the extent ofthe duty of fairness owed.

20 In Baker [ (SCC), [1999] 2 SCR 817], the Supreme Court of Canada provided a non-exhaustive list of factorsrelevant to the content of the duty of fairness. These factors may be summarized as follows: (

a) the nature of the decision being made and the process followed in making it; (

b) the nature of the statutory scheme; (

c) the importance of the decision to the individual(

s) affected; (

d) the legitimate expectations of the person challenging the decision; and (

e) the decision maker's choice of procedure. The closer the administrative process is to a judicial process, the more procedural safeguards will be necessary to ensure proceduralfairness (see Baker at para 23). [60] In my view, the recalculation of assessed value by SAMA is largely administrative.

While this recalculationcomes at the end of a detailed appeal process, once the Committee has rendered its decision, the appeal process is largely concluded andit is for SAMA to implement those directions. [61] While the decision is certainly important to the Applicants as it carries with it significant financial impact, thestatutory scheme does not obligate the Appraiser to seek evidence or submissions nor does the nature of this process raise a legitimateexpectation for input into how the Remittal Order is applied. [62] Significantly, remittal by the Committee to SAMA is not final as the application of the Committee’s directionsare subject to judicial review. [63] I find no breach of procedural fairness.

Conclusion [64] In my view, the revised assessments logically flow from SAMA’s reasoning and the actions taken by SAMA inresponse to the Board Decision and the Committee Decision, as well as the resulting remittal directions. [65] I have determined that SAMA’s actions were reasonable in the circumstances of this case and that there was nobreach of procedural fairness. I therefore dismiss the Applicants’ originating application for judicial review. SAMA is entitled to itstaxable costs of the application. J. N.D. CROOKS