Case v Edmonton (City), 2023 ABKB 232

Court of King’s Bench of Alberta Citation: Case v Edmonton (City), 2023 ABKB 232 Date: 20230424 Docket: 2103 14361 Registry: Edmonton Between: Russ Case and South Shore Country Club Inc. Applicants - and - The City of Edmonton and Edmonton Composite Assessment Review Board Respondents _______________________________________________________ Reasons for Judgment of the Honourable Justice T.G. Rothwell _______________________________________________________ I.

Introduction [ 1 ] The Applicants, Russ Case and South Shore Country Club Inc. [“South Shore”], seek to quash a decision of the Edmonton Composite Assessment Review Board [the “CARB”] that upheld a 2021 property tax assessment. [ 2 ] South Shore owns a 116.5-acre parcel of land in the City of Edmonton, municipally located at 13240 – 199 Street NW [the “Property”].

[ 3 ] South Shore advances a number of arguments, but its primary arguments are that the CARB lacked jurisdiction to hear the matter and that virtually all of the Property has been used for farming operations and should have been assessed at an agricultural use value, not at market value. [ 4 ] The City of Edmonton [the “City”] opposes the application.

The CARB properly takes no position on the merits of its decision but does make submissions with respect to the standard of review and the CARB’s jurisdiction. [ 5 ] For the reasons that follow I dismiss South Shore’s application and find that the CARB possessed the necessary jurisdiction and that its decision was reasonable and that it did not breach its duty of procedural fairness to South Shore. II.

Issues [ 6 ] This judicial review raises the following primary issues: 1) Did the CARB have jurisdiction to hear South Shore’s appeal? 2) Was the CARB’s decision to uphold the City’s assessment reasonable? 3) Did the CARB breach its duty of procedural fairness? [ 7 ] In addition, the City brought a preliminary application to strike out portions of South Shore’s written submissions and material included in their authorities on the basis that they are new evidence and were not before the CARB. III.

Standard of Review [ 8 ] In Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [ Vavilov ] , the Supreme Court of Canada clearly establishes reasonableness as the default presumptive standard of review. At paragraph 17, the Court stated: The presumption of reasonableness review can be rebutted in two types of situations. The first is where the legislature has indicated that it intends a different standard or set of standards to apply. This will be the case where the legislature explicitly prescribes the applicable standard of review.

It will also be the case where the legislature has provided a statutory appeal mechanism from an administrative decision to a court, thereby signalling the legislature’s intent that appellate standards apply when a court reviews the decision. The second situation in which the presumption of reasonableness review will be rebutted is where the rule of law requires that the standard of correctness be applied.

This will be the case for certain categories of questions, namely constitutional questions, general questions of law of central importance to the legal system as a whole and questions related to the jurisdictional boundaries between two or more administrative bodies.

Jurisdiction [ 9 ] South Shore and the City both agree that the correctness standard should apply to consideration of the CARB’s jurisdiction, while the CARB argues that it should be governed by the default reasonableness standard. [ 10 ] South Shore and the City both point to the “questions related to the jurisdictional boundaries between two or more administrative bodies” exception in paragraph 17 of Vavilov to rebut the presumption of reasonableness. [ 11 ] South Shore argues that the CARB did not have jurisdiction to review its complaint and that the Local Assessment Review Board [the “LARB”] should have assumed jurisdiction.

South Shore did not raise this jurisdictional issue before the CARB. I deal with this issue later in these Reasons. [ 12 ] In Vavilov , the Court referenced several decisions where jurisdictional issues arose as between different entities. Regina Police Association Inc v Regina (City) Board of Police Commissioners , 2000 SCC 14 considered the jurisdiction as between an arbitrator and a statutory police discipline board.

Quebec (Commission des droits de la personne et des droits de la jeunesse) v Quebec (AG), 2004 SCC 39 considered a jurisdictional dispute between a labour arbitrator and the Quebec Human Rights Tribunal. [ 13 ] The Court in Vavilov noted that administrative decisions are rarely challenged on this basis, but that intervention is required if one body has interpreted its jurisdiction in a manner that is incompatible with another: see para 64.

The Court cautioned that “members of the public must know where to turn in order to resolve a dispute”: ibid . [ 14 ] In the present case, members of the public are aware of where to submit a municipal tax complaint, by virtue of ss 460, 460.1(1) and 460.1(2) of the Municipal Government Act, RSA 2000, c M-26 [ MGA ], which direct citizens to either the LARB or CARB. [ 15 ] The Court in Vavilov clearly signalled a desire to not recognize jurisdictional questions as a separate category attracting a correctness review: para 65.

The Court at para 67 in Vavilov went on to hold that: After hearing submissions on this issue … we are now in a position to conclude that it is not necessary to maintain this category of correctness review . The arguments that support maintaining this category – in particular the concern that a delegated decision maker should not be free to determine the scope of its own authority – can be addressed adequately by applying the framework for conducting reasonableness review that we describe below.

Reasonableness review is both robust and responsive to context. [emphasis added] [ 16 ] However, this is a situation where the jurisdiction as between the LARB and the CARB arises, which was contemplated as an

exception to the reasonableness standard. Following Vavilov, the Supreme Court of Canada considered this issue in the labour relationscontext in Northern Regional Health Authority v Horrocks, 2021 SCC 42 and confirmed the correctness standard when a dispute arisesregarding the jurisdictional authority between two or more administrative bodies: see paras 8-9. [17] I conclude that correctness is the appropriate standard of review.

Decision to Confirm Assessment [18] All the parties, based upon Vavilov, agree that the standard of review regarding the CARB’s decision to confirm the City’sassessment is reasonableness. [19] CARBs have been recognized as a specialized tribunals to review property valuations and assessments: St Albert HousingSociety v St Albert (Composite Assessment Review Board), 2017 ABCA 129 at para 27 [St Albert Housing Society]. [20] I agree that reasonableness is the appropriate standard of review.

Procedural Fairness [21] All the parties agree that there is no specific standard of review for questions of procedural fairness and rely on Vavilov andBaker v Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR 817 [Baker]. [22] The Alberta Court of Appeal in R v Ferzli, 2020 ABCA 272 [Ferlzi] at para 21 stated: The standard of review for questions of procedural fairness is whether the standard of fairness required by the common law has beenmet, although some cases continue to characterize this as the application of the correctness standard of review. [23] Ferlzi arose in the context of an appeal from the Alberta Review Board, now called the Criminal Code Review Board.

Ferlziwas cited with approval in Baron Real Estate Investments Ltd v Edmonton (City of), 2021 ABCA 64 at para 17, which considered aCARB decision. [24] The following decisions also support this approach: Fitzpatrick v College of Physical Therapists of Alberta, 2019 ABCA254 at para 29; Sysco Canada, Inc v Miscellaneous Employees, 2021 ABQB 459 at para 19, citing Cenovus TL ULC v Alberta(Energy), 2019 ABQB 301 at paras 18-19. [25] I agree with the parties that procedural fairness concerns are not assessed on a reasonableness or correctness standard, butinstead in accordance with Ferlzi. IV.

Preliminary Applications Affidavit Evidence [26] At the commencement of this Judicial Review of February 9, 2023, I heard an application from the CARB to supplement theCertified Record of Proceedings [the “Record”]. CARB sought to file an affidavit explaining how their electronic filing system processesapplications and to supplement the Record. The affidavit also detailed some changes in process that were implemented to respond toCOVID 19. [27] I admitted the affidavit of Hao Miao, tribunal clerk employed by the City of Edmonton Tribunals.

Application to Strike [28] The City objects to South Shore including prior and subsequent years’ property tax assessment information in its writtensubmissions at paragraphs 9,10, 44, 47, and 48; references at footnotes 3 and 28; and materials at Tab 8 of its brief. [29] The City relies upon r 3.22 of the Alberta Rules of Court, Alta Reg 124/2010, which, in essence, directs that this Court shouldonly consider the materials that were before the decision maker when conducting its judicial review.

The City argues that these materialswere not before the CARB. [30] The City also points to s 9 of the Matters Relating to Assessment Complaints Regulation, 2018, Alta Reg 201/2017 [MRAC],which outlines the disclosure process for evidence to be placed before the CARB.

The City argues that it would be unfair to allow newinformation to be considered by this Court on judicial review that was not before the CARB. [31] South Shore advances two arguments: • This Court can take judicial notice of past and subsequent tax assessments, and a pattern of tax assessments exists which supportsor relates to a legitimate expectation argument; and • The CARB’s decision-making process does not operate in a vacuum, and regard can be had to these values to assess thereasonableness of the CARB’s decision. [32] The past and subsequent tax assessments were not before the CARB.

South Shore acknowledges this at paragraph 47 of its

brief. [ 33 ] Judicial notice requires facts which are (

a) so notorious as not to be the subject of dispute among reasonable persons; or (

b) capable of immediate and accurate demonstration by resorting to readily accessible sources of indisputable accuracy ( Sopinka, Lederman & Bryant: The Law of Evidence in Canada , 6th ed (Toronto: LexisNexis Canada, 2022) at 19.02).

I am not prepared to accept that tax assessments are something amenable to judicial notice. [ 34 ] More importantly, it is well established that a judicial review should be conducted having regard to the materials that were before the decision maker: Sobeys West Inc v Alberta College of Pharmacists , 2017 ABCA 306 at para 67 [ Sobeys West Inc ]; Gowrishankar v JK , 2019 ABCA 316 at para 60 .

The most common exceptions are if the materials relate to establishing standing or bias or to demonstrate a breach of procedural fairness: see Sobeys West Inc at para 65 ; Alberta Liquor Store Association v Alberta (Gaming and Liquor Commission) , 2006 ABQB 904 at para 41 . [ 35 ] South Shore argues that it had a reasonable expectation that its assessment would not change or not change significantly and that this grounds additional procedural protections. Even if I accept that South Shore was surprised, this does not explain why they did not place this information before the CARB.

I am not persuaded that the past tax assessments are necessary to consider the procedural rights of South Shore nor is it is appropriate to consider evidence that was not placed before the CARB. South Shore, in my view, is essentially a seeking a do over. [ 36 ] Materials contained in a legal brief, whether in the body or authorities, are not evidence.

Evidence must be set out in an affidavit, received by oral testimony, or authorized in some other manner (e.g., s 56.4 and s 201 of the Land Titles Act , RSA 2000 c L-4 ). [ 37 ] An attempt to introduce new evidence or, in this case, supplement the Record by including the tax assessments as authorities, has been referred to as “bootlegging evidence in the guise of authorities”’: Langan v Watson , 2007 ABCA 94 at para 5 ; R v King , 2013 ABCA 3 at para 17 . [ 38 ] The preferred procedure is for a party to make an application to include new evidence that it wishes to rely upon.

Such an application alerts the other party to the proposed evidence and clearly articulates the basis upon which it should be admitted. [ 39 ] South Shore argued, in the alternative, that paragraphs 9, 10, 44, 47 and 48 should not be entirely struck as they contain both fact and argument. I find that paragraph 9 and Tab 8 of South Shore’s brief should be struck in its entirety and that I will have no regard to the past assessment values in paragraphs 10, 44, 47 or 48 when I consider their arguments. V. Analysis Issue 1 – Did the CARB Have Jurisdiction To Hear South Shore’s Complaint?

Legislative Scheme [ 40 ] I made brief reference to the legislative scheme when I was considering the appropriate standard of review. Below I elaborate further on some of the concepts underlying the legislative scheme that governs property tax assessment and the complaint process under the MGA . [ 41 ]

Section 285 requires the City to annually prepare an assessment for each property in the municipality, with some exceptions. Section 308(1) of the MGA requires the City to prepare and send assessment notices annually. [ 42 ] Section 297(1) (

a) of the MGA requires: When preparing an assessment of property, the assessor must assign one or more of the following assessment classes to the property: (

a) class 1 - residential; (

b) class 2 - non-residential; (

c) class 3 - farmland; (

d) class 4 - machinery and equipment. [ 43 ]

Section 460 of the MGA authorizes a complaint about information set out on an assessment or tax notice. Section 460(5) reads: “A complaint may be about any of the following matters, as shown on an assessment or tax notice”. Section 460(5) goes on to list matters, including: (

c) an assessment; (

d) an assessment class; and (

e) an assessment sub-class. [ 44 ]

Section 460.1 of the MGA , as modified by the City of Edmonton Charter, 2018 Regulation , Alta Reg 39/2018 , s 4(23) [ City Charter ], sets out the jurisdiction of the LARB and CARB. [ 45 ] The modified

section reads as follows:

460.1(1) A local assessment review board has jurisdiction to hear complaints about any matter referred to in section 460(5) that is shown on (

a) an assessment notice for (

i) residential property with 3 or fewer dwelling units, or (ii) farmland, or (

b) a tax notice other than a property tax notice.

(2) Subject to section 460(14), a composite assessment review board has jurisdiction to hear complaints about any matter referred to in section 460(5) that is shown on an assessment notice for property other than property described in subsection (1)(a) [emphasis added]. [ 46 ]

Section 13 of the MRAC reads as follows: If a property is used or designated for multiple purposes in circumstances where both a local assessment review board and a composite assessment review board have jurisdiction to hear a complaint with respect to the property, the complaint must be heard by the composite assessment review board [emphasis added]. Parties’ Positions [ 47 ] South Shore argues that the words “used or designated” in s 13 of the MRAC do not align with s 460.1 or s 297 of the MGA , which speaks of an “assignment” of the assessment class.

South Shore also argues that, because the assessor assigned a non-permissible assessment class to the subject property, it resulted in the CARB improperly receiving jurisdiction. [ 48 ] The City argues that the CARB had jurisdiction based upon the assessment classes that were assigned to the Property and the combined effect of s 13 of the MRAC , the relevant MGA provisions, and the City Charter .

The City also argues that this issue was not raised before the CARB and cannot substantiate a ground for judicial review. [ 49 ] The CARB maintains that it had jurisdiction and objects to the issue being raised for the first time at the judicial review. Jurisdiction – Raised For the First Time on Judicial Review [ 50 ] I have reviewed the Record, and the City and the CARB are correct that this issue was not raised before the CARB. [ 51 ] Both parties cited Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61 [ Alberta Teachers ] in support of their positions.

Alberta Teachers considered the appropriateness of judicially reviewing an issue that was not raised before the decision maker. [ 52 ] I note the following principles from Alberta Teachers : • A court is vested with discretion to not consider issues raised for the first time on judicial review: para 22. • If an issue could have been raised the discretion will generally not be exercised in favour of considering it: para 23. • Courts should generally allow a tribunal to deal with an issue first and respect the legislative choice of assigning the issue to the tribunal: para 24. • If the issue being raised relates to the tribunal’s specialized functions or expertise this will generally militate against considering the issue: para 25. • A court should consider whether allowing the issue to be raised for the first time would prejudice the opposing party and/or deny the court a fulsome evidentiary record: para 26. [ 53 ] The determination of jurisdiction in this matter is an exercise in statutory

interpretation. [ 54 ] Neither the City or the CARB raised arguments related to specific prejudice, and the City did not argue that it would have placed any evidence before the CARB. [ 55 ] I also find that the correctness standard of review, relative to the jurisdictional boundaries issue, militates in favor of me considering the issue. I also recognize that the CARB has expertise; however, that expertise lies in the substantive areas of valuation and assessment and municipal taxation. [ 56 ] While the issue should have been raised before the CARB, I am prepared to exercise my discretion to consider the issue.

Analysis [ 57 ] The Property Assessment Detail Report in the Record confirms that the following classes were assigned to the Property for the 2021 tax year:

• Residential; • Farmland; and • Non-residential. [58] Farmland and residential classes are within the LARB’s jurisdiction, while non-residential is within the CARB’s jurisdiction:MGA, s 460.1; City Charter, s 4(23). [59] A single property may have different assessment classes: MGA, s 297; Associated Developers Ltd v Edmonton (City of), 2020ABCA 253 at para 37. So, at first blush, this is a situation where both the LARB and CARB have jurisdiction over the property.

Thequestion is whether s 13 of the MRAC gives exclusive jurisdiction to the CARB. [60] The City argues that resort to s 13 of the MRAC clearly establishes that the CARB has jurisdiction. [61] South Shore argues that the words “used or designated” in s 13 of the MRAC do not align with the wording of s 297, whichreferences the assignment of an assessment value. [62] Both parties cited case law regarding the rules for statutory

interpretation. [63] The principles of modern statutory

interpretation require me to read the words of the relevant sections in their entire contextand in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and intention of Parliament:Re Rizzo and Rizzo Shoes Ltd, (SCC), [1998] 1 SCR 27 at 40-41 [Rizzo]; Canada Trustco Mortgage Co v Canada,2005 SCC 54 at para 10. Rizzo also stands for the proposition that the legislature does not intend to produce absurd consequences andthat “an

interpretation can be considered absurd if it leads to ridiculous or frivolous consequences”: at para 43. [64] The Supreme Court of Canada in Edmonton (City of) v Edmonton East Capilano Shopping Centres Ltd, 2016 SCC 47considered the property tax assessment regime under the MGA.

The Court directed that when specific sections are considered theyshould be determined “by examining the words of the provision in their entire context and in their grammatical and ordinary sense, inharmony with the object and scheme of the MGA” see para 44. [65] South Shore is correct that the words “used or designated” do not expressly align with the language in s 297(1) and s 460.1;however, the use of slightly different wording does not automatically lead to the conclusion that a conflict exits. Regard must also be hadto the

definitions of “farmland” and “residential” in s 297(4) of the MGA, as amended by the City Charter. The

definitions of bothemploy the terms “use” and “designation”. [66] Specifically, 297(4)(

a) reads: “farmland” means land used for farming operations as defined in the regulations. Under s 4(16)(

c) of the City Charter, “residential”, in respect of property means, (

i) a property or a portion of a property currently used for permanent living accommodation, (ii) a vacant property where permanent living accommodations is the primary permitted use for that land assigned as a land usedesignation under a land use bylaw passed by a municipal council, or (iii) a property or a portion of a property where permanent living accommodations is a permitted or discretionary use assigned as aland use designation for that land under a land use bylaw passed by a municipal council if a development permit has been issued by themunicipality or construction has commenced to build permanent living accommodations on the land, but does not include: (iv) a property or a portion of a property on which industry, commerce or farming operations currently take place, or (

v) a vacant property that has more than one primary permitted use assigned as a land use designation under a land use bylawpassed by the council. [67] This shows that, when assigning an assessment class, consideration is guided for some assessment classes by land use anddesignation as evidenced by the use of the terms “use” and “designation”. [68] When the relevant sections are read in their entirety, I come to the following conclusions: • The Legislature sought to create an avenue of appeal for ratepayers; • The Legislature mandated the creation of two appeal bodies: the LARB and CARB; • Properties must be assigned an assessment class or classes in accordance with s 297; • An assessment class may be assigned based on the use or designated use of a property; • The LARB and CARB’s jurisdiction is determined by the assessment class or classes assigned to the subject property on itsassessment notice; • The LARB and CARB may both have jurisdiction over a single property; and • Where both the LARB and the CARB have jurisdiction, s 13 of the MRAC assigns matters “used or designated for multiplepurposes” to the CARB.

[ 69 ] On this basis, I conclude that the CARB had jurisdiction to hear South Shore’s complaint, given the multiple assessment classes assigned and the operation of s 13. [ 70 ] South Shore further argues that the assessor assigned a non-permissible assessment class to the subject property and that jurisdiction should not be grounded in a non-permissible assessment class.

However, that is an argument that should be advanced before the CARB on its merits not as a means to challenge the CARB’s jurisdiction. [ 71 ] South Shore’s ability to challenge the accuracy of an assessment class assigned to its property is not precluded by the CARB’s jurisdiction. The assessment class listed on the assessment notice is merely used as a method of assigning and delineating jurisdiction.

The assessment class is a matter that can form the subject matter of a complaint to either entity: see MGA , s 460(5)(d). [ 72 ] If an entity like South Shore’s complaint to the CARB or LARB is successful, the assessment classes on a notice may be changed. It would not make sense to base jurisdiction on the final outcome of a CARB or LARB hearing. [ 73 ] The

interpretation urged by South Shore results in the following: • The conflict that it urges the Court to find would remain unresolved; • It renders s 13 of MRAC pointless; and • It creates the potential for multiple hearings regarding one piece of property. Conclusion [ 74 ] I do not accept South Shore’s

interpretation or find that a conflict exists. South Shore’s argument leads to an absurd result, because it seeks to defeat a logical and comprehensive legislative scheme. The CARB did not expressly deal with jurisdiction, because it was not raised before it. I have determined that it was appropriate to consider the issue notwithstanding that South Shore did not raise the issue before the CARB. I am satisfied on a correctness standard that the CARB had jurisdiction to hear South Shore’s complaint. Issue 2 – Was The CARB’s Decision Reasonable?

South Shore’s Property [ 75 ] The Property is approximately 116.5 acres in size, and the City assigned an assessment value to the property of $8,137,000. [ 76 ] The City assessed 3 acres as residential at market value, 48.531 acres as farmland, and the remaining 64.975 at market value, because it determined that the lands were not being used for farming operations.

I will refer to the 64.975 acres as the Market Value Lands. [ 77 ] South Shore disputed the value of the 3-acre residential property before the CARB; however, that issue is not before this Court. [ 78 ] In its complaint to the CARB, South Shore argued that the Market Value Lands were used for farming operations and should have been valued at an agricultural use value, not market value. [ 79 ] The CARB found that a portion of South Shore’s Market Value Lands were cleared in a pattern that is consistent with a golf course development.

New Arguments [ 80 ] At the conclusion of oral argument on February 9, 2023, I invited the parties to provide additional written argument as South Shore’s arguments had evolved since the initial filing of their brief. [ 81 ] South Shore, in its Supplemental Brief, dated February 14, 2023, raised the argument that the “residential assessment class assigned by the City to the majority of the property is not permissible under the definition of the residential class in the City of Edmonton Charter”: see para 9. [ 82 ] South Shore also raises the possibility that the CARB could have determined that the assessment was unfair and inequitable and potentially referred the matter to the Minister of Municipal Affairs under s 476.1 of the MGA . [ 83 ] Both the City and CARB object to these new arguments on the basis that they were not raised before the CARB and note that: • South Shore did not advance an argument that the Market Value Lands should be valued at a different non-residential market value; • South Shore did not advance an argument that the Market Value Lands should be classified entirely as non-residential; and • South Shore did not raise the classification of the Market Value Lands as a ground for judicial review in their Originating Application. [ 84 ] Both the City and the CARB rely on the Alberta Teachers decision in support of their argument that these issues should not be considered, because they are being raised for the first time on judicial review.

[ 85 ] The CARB fairly points out that South Shore checked off “box 4” on the Assessment Review Complaint Board form, but also notes that South Shore advanced no argument in this regard. Box 4 relates to “assessment class”. However, the CARB argues that South Shore failed to comply with s 460(9)(

b) and (c), because they did not provide any particulars of their argument in the complaint. [ 86 ] While the CARB’s argument may at first blush appear to be technical, it is persuasive, because it aligns with the rationale for not allowing new arguments to be raised at a judicial review. [ 87 ] The CARB did not hear submissions on these issues, so it could not consider the issues, and, similarly, the City did not have an opportunity to respond to the issue.

The City indicated it may have filed evidence in response. [ 88 ] While I am prepared to consider the issue of jurisdiction, I am not prepared to consider these new arguments. Unlike jurisdiction, the issues of valuation and classification are matters that the CARB should have the opportunity to consider and utilize its considerable expertise: Alberta Teachers at paras 22-26 .

Additionally, I accept the City’s argument that allowing these arguments to be made for the first time potentially prejudices the City. [ 89 ] I also find that the reasonableness standard of review militates in favour of not considering these issues, because I should be reviewing the CARB’s findings for reasonableness as opposed to deciding the issue de novo . [ 90 ] Finally, the City points to s 10(

a) of the MRAC , which precludes the CARB from hearing matters not raised on the complaint form or evidence not received in accordance with s 9. It is not CARB’s role to raise new issues. [ 91 ] South Shore advanced one primary argument before the CARB; namely, that the Market Value Lands were used for farming operations and should be assessed at an agricultural value. South Shore had ample opportunity to present evidence and fulsome argument on the other issues, but it did not. [ 92 ] For the reasons outlined in the preceding paragraphs, I decline to consider South Shore’s new arguments.

Primary Issue – Was It Reasonable for the CARB to conclude that the Market Value Portion was not being used for Farming Operations? [ 93 ] Assessments are completed on an annual basis: MGA , s 285. The specific issue before the CARB concerned whether the Market Value Lands were used for farming operations. If the land is not used for farming operations, the valuation standard is market value, not agricultural use value: see s 7 of Matters Relating to Assessment and Taxation Regulation, 2018 , Alta Reg 203/2017 [ MRAT ]. [ 94 ] Section 2(1) (

f) of MRAT is a key provision: “farming operations” means the raising, production and sale of agricultural products and includes. (

i) horticulture, aviculture, apiculture and aquaculture, (ii) the raising, production and sale of (

A) horses, cattle, bison, sheep, swine, goats or other livestock, (

B) fur-bearing animals raised in captivity, (

C) domestic cervids within the meaning of the Domestic Cervid Industry Regulation (AR 188/2014 ), or (

D) domestic camelids, (iii) the planting, growing and sale of sod, and (iv) an operation on a parcel of land for which a woodland management plan has been approved by the Woodlot Association of Alberta or a forester registered under the Regulated Forest Management Profession Act for the production of timber primarily marketed as whole logs, seed cones or Christmas trees, but does not include any operation or activity on land that has been stripped for the purposes of, or in a manner that leaves the land more suitable for, future development [emphasis added]. [ 95 ] The City was satisfied that farming was occurring on 48.531 acres of the Property but did not accept that farming was occurring on the remaining approximately 65 acres, and those lands were assessed as residential and non-residential, and they were assessed at market value. [ 96 ] South Shore’ Complaint to the CARB focused on the 65-acre Market Value Lands, and they argued that the entire parcel was used for farming operations in 2020.

The CARB’s Decision [ 97 ] South Shore raises the following concerns with the CARB’s decision: • It applied a narrow

interpretation of the phrase “used for farming operations”;

• It failed to provide reasons regarding designation of 39.723 acres as Non-Residential Parkland; • The CARB failed to request additional evidence from the Applicants; and • The decision was not coherent. [ 98 ] South Shore specifically points to the following paragraphs in the CARB’s decision: 16. MRAT provides that the valuation standard for a parcel of land is market value, or if the parcel is used for farming operations, it is agricultural use value. The Complainant argued that the majority of the parcel was used for farming operations including the grassed areas that were not assessed as farmland.

These areas appear to have been cleared for golf fairways, and the photographs submitted do show vegetation that might be suitable for haying or pasture, but in the absence of evidence that it is in fact hayed or used for pasture, the CARB does not agree that this portion of the land was used for farming operations. 17. For that reason, the CARB determined that land that is not used for farming operations should be assessed at market value. There was no market evidence provided by the Complainant to suggest a different rate should apply to such land; therefore, the assessment of that land was confirmed. Narrow

Interpretation [ 99 ] South Shore argues that the CARB failed to consider the economic or operational practicalities of farming and failed to consider that land may be left fallow or not continuously grazed. South Shore points to Airdrie (City of) v 803969 Ltd , 2020 ABQB 114 [ Airdrie ] to support its argument. [ 100 ] While the Airdrie decision is relevant, it is distinguishable, in part, on the basis that there was evidence before the CARB regarding the subject property’s past uses and circumstances of non-use. In this case there was no such evidence.

Moreover, South Shore did not advance any arguments about land being left fallow or other arguments or explanations relative to economic or operational practicalities of farming. [ 101 ] The evidence before the CARB was sparse: a statement that the Property had been farmed since 2008, photos, a lease that ran from Jan 1, 2021 to December 31, 2021 and another lease that ran from January 1, 2015 to December 31, 2023.

The relevant assessment year is 2020 and the condition date is December 31, 2020. [ 102 ] The CARB considered the evidence and arguments before it and applied the definition of “farming operations” in coming to its conclusion. The CARB was also aware of the exception to farming operations for land that has been stripped for future development as set out in s 2(1)(

f) of the MRAT , because it recited it when it set out the City’s position in its decision. Non-Residential Parkland [ 103 ] The CARB described the Property and determined that none of the Market Value Lands were used for farming operations. The CARB’s decision applied to the entirety of the Market Value Lands, and it considered all of the evidence regarding the disputed Market Value Lands. [ 104 ] As discussed, South Shore only advanced the argument that the Market Value Lands were used for farming operations, and it did not otherwise challenge the valuation of the Market Value Lands before the CARB.

Accordingly, there was no need for the CARB to give reasons with respect to the Non-Residential Parkland designation. Failure to Request Additional Evidence [ 105 ] It is not the CARB’s role to advise parties what evidence or arguments they should put forward. The CARB is the decision maker, not an advocate or mentor for the parties appearing before it.

Section 9 of the MRAC sets out the disclosure process for evidence as between the parties and provides the complainant (i.e., South Shore) with an opportunity to submit evidence and rebuttal evidence. [ 106 ] In the words of the Court of Appeal, “[i]t is for the party challenging the assessment to make its case”: St Albert Housing Society at para 44 .

Coherence [ 107 ] South Shore argues that the decision lacks coherence, because the CARB disregarded its evidence, and it failed to explain why a crop must be cultivated each year in order for “farming operations” to be established. [ 108 ] The CARB’s decision reveals that it explicitly considered South Shore’s photos, its statement that it has farmed the land since 2008, and the rental agreements: see paras 4, 7, and 11 of the CARB’s decision. [ 109 ] The CARB also considered the City’s evidence, and, while its decision was concise, it concluded that “in the absence of evidence that it is hayed or used for pasture, the CARB does not agree that this portion of the land was used for farming operations”: see para 16 of the CARB’s decision. [ 110 ] In Vavilov , the Supreme Court directed that a reviewing court is to consider whether the decision is reasonable as a whole and noted that the hallmarks of reasonableness are – “justification, transparency and intelligibility”: at para 99.

The Court also directs that a reviewing court consider whether the decision is justified in relation to the relevant factual and legal constraints that bear on the decision.

[ 111 ] The CARB’s decision is concise, but I find it is coherent. The CARB did not disregard South Shore’s evidence; it found it to be insufficient. The CARB noted that vegetation shown in the photos might be suitable for haying or pasture but noted there was no evidence that it was in fact used for these purposes. It was open to the CARB draw an inference that the hay was harvested or consumed by livestock; however, it did not. [ 112 ] It is not my role to substitute my views for that of the CARB.

My role is to assess whether, based upon my review of the Record and the legal framework, the decision was reasonable. [ 113 ] Vavilov cautions against a “line by line treasure hunt for error”: see para 102. Conclusion [ 114 ] In

summary, I find the CARB’s decision to be rational and logical and, therefore, reasonable for the following reasons. • The CARB outlined and considered the parties’ positions. • The CARB referenced the evidence that was placed before it and assessed the evidence (e.g., noted the photos, noted the dates of leases, and noted the relevant time period – 2020). • The CARB accurately described the land, including the fact that it had been cleared for future development. The aerial/satellite photos depict clearing that is consistent with a golf course. • The CARB noted an absence of evidence.

An absence of evidence is a relevant consideration. There was no evidence of what was harvested/planted, or what volume, or by whom, or what animals were pastured on the lands. • An agreement/lease that allows farming does not mean that a portion or the entire parcel is actually used for farming operations. • The CARB noted the MRAT and considered whether the land “is used for farming operations”, which is the relevant legal test. • The CARB did not misapprehend or fail to account for any evidence before it.

Issue 3 – Procedural Fairness [ 115 ] In Vavilov , the Supreme Court confirmed the holding in Baker that the “duty of procedural fairness in administrative law is ‘eminently variable’, inherently flexible and context-specific”: at para 77.

In a given case, the specific procedural requirements are determined with reference to all of the circumstances: ibid . [ 116 ] The Court also adopted the non-exhaustive list of factors that inform the content of the duty of procedural fairness set out in Baker : (1) the nature of the decision being made and the process followed in making it; (2) the nature of the statutory scheme; (3) the importance of the decision to the individual or individuals affected; (4) the legitimate expectations of the person challenging the decision; and (5) the choices of procedure made by the administrative decision maker itself: Baker at paras 23-27 ; Vavilov at para 77 . [ 117 ] The onus of proving a breach of procedural fairness rests with the party asserting it: Al-Ghamdi v Peace Country Health Region , 2015 ABQB 155 at para 64 , upheld on appeal, 2017 ABCA 31 . [ 118 ] South Shore argues that it had a legitimate expectation that its taxes would not be significantly increased.

South Shore further argues that the following matters constitute breaches of procedural fairness: • CARB’s failure to hold an oral hearing; • CARB’s failure to advise South Shore that they could retain legal counsel; and • CARB’s failure to explain to South Shore the case they had to meet. [ 119 ] South Shore failed to raise any of these issues in front of the CARB.

Generally, an allegation of procedural unfairness may not be raised for the first time on judicial review if it could have been raised in front of the administrative decision maker: Taseko Mines Limited v Canada (Minister of the Environment) , 2019 FCA 320 at paras 46-47 , leave to appeal ref'd [2020] SCCA No 49; Hennessey v Canada , 2016 FCA 180 at para 20 ; Nexxtep Resources Ltd v Alberta (Energy Resources Conservation Board) , 2013 ABCA 186 at para 41 . [ 120 ] It is clear that South Shore could have requested an oral hearing or objected to the hearing format before the CARB. It failed to do so.

I also note that the Record demonstrates that South Shore requested a written hearing. A video hearing was available, which was a reasonable alternative during the COVID 19 Pandemic. South Shore could have requested a video hearing, but they did not. Given that South Shore chose a written hearing, South Shore is not entitled to ask for a different procedure on judicial review. [ 121 ] Similarly, South Shore did not raise the issue of legitimate expectations before the CARB.

I will deal with this issue, because South Shore raises it in an effort to elevate the procedural protections that it believed it did not receive. I will also consider South Shore’s argument that the CARB should have notified it that it could retain legal counsel and its failure to explain the case South Shore had to meet. I will consider these arguments because, arguably, these are issues that South Shore was unaware of and could not have raised in front of the CARB. Legitimate Expectations

[ 122 ] South Shore raises the issue of legitimate expectations and cites Baker at paras 25-27 .

South Shore relies on the direction that “if a claimant has a legitimate expectation that a certain result will be reached in his or her case, fairness may require more extensive procedural rights than would otherwise be accorded...” [ 123 ] To claim an enhanced procedure on the basis of the doctrine of legitimate expectations, a party must show that a public authority has made representations with respect to the procedure that will be followed or the expected substantive result of a decision: Agraira v Canada (Public Safety and Emergency Preparedness) , 2013 SCC 36 at para 94 [ Agraira ]; see also TransAlta Generation Partnership v Alberta , 2022 ABCA 381 at paras 100-101 .

For the doctrine of legitimate expectations to apply, the representations that give rise to the expectation must be clear, unambiguous, and unqualified: Agraira at para 95 . It has been said that they must be sufficiently precise that if they had been made in the contractual context, it would be an enforceable part of the contract: ibid at para 96. [ 124 ] In this case, South Shore argues it had a legitimate expectation that its taxes would stay the same. However, South Shore does not put forward any clear representation from the City that its taxes would remain the same. It relies on previous tax assessments.

However, those assessments do not clearly and unambiguously represent that future assessments would be the same. I declined to admit the assessments that South Shore sought to rely upon; however, even if I had assessments do not ground a legitimate expectation because there is no representation that an assessment will remain static. To the contrary, the MGA is clear that taxes are reassessed annually, based on the principles set out in that Act and its regulations. [ 125 ] I do not find that South Shore had any legitimate expectations that would increase the procedural obligations on the CARB.

Failure To Notify South Shore They Could Retain Legal Counsel [ 126 ] South Shore complains that the CARB did not inform them they could retain legal counsel. As a result, South Shore argues that they did not know the case they had to meet and/or that they should have been alerted to evidentiary gaps. [ 127 ] The City argues South Shore would have had notice of their ability to retain an agent, because the Assessment Complaint Website and Notice of Complaint reference the need for an Agent Authorization Form, which by inference would suggest they can have an agent represent them in front of the CARB.

The City also points to the decision of British Columbia (Attorney General) v Christie , 2007 SCC 21 at para 27 for the proposition that there is no generalized constitutional right to legal counsel. [ 128 ] South Shore offers no authority for the proposition that the CARB was required to advise them that they were permitted to retain legal counsel, and I cannot conclude that the CARB had any obligation to do so. Parties need to investigate the complexity of a process and review the relevant legislation and make a determination whether they wish to retain assistance or handle their own matter.

It is not unfair to expect South Shore to take responsibility for advancing its own case. [ 129 ] Moreover, there is no suggestion that South Shore was unaware of its ability to retain a lawyer or that it had received contrary direction from the CARB. As a result, South Shore has not satisfied me that the CARB’s failure to notify them that they could retain legal counsel constitutes a breach of procedural fairness.

CARB’s Failure To Explain The Case to Meet [ 130 ] I have largely considered this issue at paras 106-107. [ 131 ] I repeat my finding that it was not incumbent upon the CARB to seek out additional evidence or coach South Shore on how to present its case. [ 132 ] Nothing in the Record causes me to question whether South Shore was accorded the opportunity to present its case to CARB. South Shore has not satisfied me that CARB’s manner of conduct constitutes a breach of procedural fairness. VI.

Conclusion [ 133 ] South Shore’s application to quash the CARB’s decision is dismissed in its entirety. [ 134 ] The City sought costs. The City has been successful and is entitled to its costs on

Schedule C on the appropriate column. [ 135 ] The CARB did not seek costs. [ 136 ] If the parties need to speak to me regarding costs, they may do so within 30 days of the release of this decision. Heard on the 9 th day of February, 2023. Dated at the City of Edmonton, Alberta this 24 th day of April, 2023 .

T.G. Rothwell J.C.K.B.A. Appearances: Melissa M. Boyles and Matthew Blimke Powse Chowne LLP for the Applicants Amy Abbott Emery Jamieson LLP for the Respondent Edmonton Composite Review Board Tanya Boutin The City of Edmonton for the Respondent The City of Edmonton