Dietrich v. Provincial Date:, 2012 MBCA 52

Citation: Dietrich v. Provincial Date: 20120524 Municipal Assessor , 2012 MBCA 52 Docket: AI 12-30-07769 IN THE COURT OF APPEAL OF MANITOBA B E T W E E N : ) A. Dietrich ARNOLD DIETRICH ) on his own behalf ) (Appellant) Applicant ) W. G. McFetridge ) for the Respondent ) - and - ) M. K. Stonyk ) for The Municipal Board ) of Manitoba PROVINCIAL MUNICIPAL ASSESSOR ) ) Chambers motion heard: (Respondent) Respondent ) May 3, 2012 ) ) Decision pronounced: May 24, 2012 FREEDMAN J.A. 1 The applicant seeks leave to appeal Order No.

A-12-020 (the Order) of the Municipal Board of Manitoba (the Board) made March 5, 2012, relating to the assessment of certain property he owns in the Rural Municipality of St. Clements (the R.M.). Sections 63(1) and (2) of The Municipal Assessment Act , C.C.S.M., c. M226 (the Act ) provide: Appeal to Court of Appeal 63(1) Subject to this section, a party to an appeal to the Municipal Board … may appeal the order of the Municipal Board … to the Court of Appeal upon (

a) a question involving the jurisdiction of The Municipal Board … or (

b) a point of law; …. Leave to appeal 63(2) A party may not appeal an order of the Municipal Board to the Court of Appeal without leave of a judge of the Court of Appeal.

2 In his notice of motion and supporting affidavit, the applicant advanced several grounds of appeal. By the time this matter came before me for argument, he had abandoned all grounds save one. The remaining ground, which raises a question of jurisdiction, is that the Board erred by not treating the R.M. as a “party” to the matter that was before it. The applicant’s argument, in his words, is: … [T]he Municipality (not the Board of Revision) is in legislation a “Party” to my Appeal according to Definition of “Party” in The Municipal Assessment Act . ….

Pursuant to legislation, the wrong “Party” was named and this Appeal was illegal. It is imperative that the Municipality be a “Party” to my Appeal to show why the Municipality requested that the Selkirk and District Planning Area Board offered me a project without a Building or Development Permit and that this project did not need to follow the Manitoba Building Code. …. 3 The matter came to the Board as an assessment appeal under s. 56(2) of the Act from an order of the R.M.’s Board of Revision, which had determined the 2009 assessed value of the property in question.

The decision of the Board (resulting in the Order) states (at paras. 4-5): Mr. Dietrich, the Owner of the subject [ sic ], advises that he is prepared to proceed with the hearing “under protest”. The Board is taking this to mean that Mr. Dietrich is reluctant to go ahead with the hearing because he believes it is not properly being held. Mr. Dietrich’s position is that the Board of Revision ought to be party to this appeal to defend their previous Order. The Board finds that pursuant to the legislation, the proper parties have been named and that it is operating within its legislative authority.

There is no authority for the Board of Revision to be named as a party. 4 In fact, it appears that there may have been a misunderstanding about the applicant’s objection, which was not that the Board of Revision should be a party to the appeal, but that the R.M. should be a party. In his submission to the Board he had stated: … [T]he Municipal Board … has taken away all our rights to Appeal the “Order” of the Board of Revision and to have the Rural Municipality as “Parties”.

This means that the Municipality can make any Order, even if it is malicious and they will never be ordered to defend such Order. …. 5 In his present application, the applicant was clear; his objection was that the R.M. was a “party,” should have been named as a party, and should have appeared at the hearing before the Board. He relied on the following definition in s. 1(1) of the Act : “party” means, in respect of an application for revision under subsection 42(1), (

a) the person whose property is the subject of the application, or the authorized agent of the person, or (

b) the assessor having jurisdiction over the assessment of property in the municipality in which the property is situated; and in respect of an appeal under

section 56, includes the subject municipality. 6 Thus, he argued, not only were he and the respondent (the Assessor) parties to the proceedings, but so was the R.M., as the “subject municipality,” being the municipality where his property was situated. He argued further that since the R.M. had not appeared at the Board hearing to “defend” its position and actions, the Board lacked jurisdiction and the proceedings which led to the Order were a nullity, as was the Order itself. 7 Counsel for the Assessor, with whom counsel for the Board agreed, argued that no question of jurisdiction arises.

Reference was made to other provisions in the Act , which include: Municipal Board to set appeal hearing with notice 57(5) Subject to subsection (5.1), the Municipal Board shall, with respect to each appeal, set the date, time and place of hearing of the appeal and give written notice of the date, time and place of hearing of the appeal by registered mail to each of the parties.

Notice of appeal hearing 57(6) A notice under subsection (5) must set out (

a) the name of the appellant and the names of the other parties to the appeal; (

b) the roll number and legal description or address of the assessable property to which the appeal relates; and (

c) the scheduled date, time and place of the hearing of the appeal. Posting of notice of appeal hearing 57(7) The municipal administrator to whom a notice is sent under subsection (5) shall post the notice in a conspicuous place in the building in which the central offices of the municipality are located. 8 Counsel for the Assessor agreed that, in light of the statutory definition, and since this was an appeal under s. 56(2) , “party” would include the municipality where the subject property was situated, and I agree with that position.

The wording of the definition suggests that to be the case, as does reading the Act in its entirety. For example, s. 57(7) imposes on the municipal administrator a duty to post publicly any notice of an appeal hearing he or she receives under s. 57(5). It is because the municipality is a party that it receives a notice under s. 57(5). Moreover, provisions in the Act relating to a board of revision are consistent with that

interpretation; see, e.g., s. 54(5). So to this extent, the position advanced by the applicant is sound. 9 In this case, the Board gave written notice, as required under s. 57(5), of the date, time and place of the hearing of the appeal to the R.M. This was effected by certified mail dated November 22, 2011. The giving of such notice would enable the R.M. to post the notice as required by s. 57(7). 10 Whether the R.M. should be named as a party in the title of the proceedings was not fully argued, and in any case is not something that I must decide in this case.

I note that the Board’s Assessment Appeal Rules of Procedure ( Municipal Board Assessment Appeal Rules ) are silent on the subject. Those Rules do provide that: Application of Queen’s Bench Rules 2 In addressing a matter not dealt with in these Rules, the board shall guide itself with reference to the Queen’s Bench Rules , with such modifications as the board determines to be appropriate in the circumstances.

Board may dispense with compliance 3 The board may vary the application of, or dispense with, compliance with these Rules as the circumstances require. 11 The Queen’s Bench Rules state: Originating process generally 14.06(1) Every originating process shall contain a title of the proceeding setting out the names of all the parties and the capacity in which they are made parties, if other than in their personal capacity. 12 The implication of that Queen’s Bench Rule is that, when the Board creates the title of the proceedings, the R.M. should be named as a party.

But if it is not so named, the result is not a nullity, as argued by the applicant, but only an irregularity. See Queen’s Bench Rule 2.01(1):

Not a nullity 2.01(1) A failure to comply with these rules is an irregularity and does not render a proceeding or a step, document or order in a proceeding a nullity, and the court, (

a) may grant all necessary amendments or other relief, on such terms as are just, to secure the just determination of the real matters in dispute; or (

b) only where and as necessary in the interest of justice, may set aside the proceeding or a step, document or order in the proceeding in whole or in part. 13 Most significantly, even if the R.M. is a party, and whether or not it was so named, I am satisfied that there is no obligation on a party to attend a hearing, and certainly no obligation on a party to participate in one.

In particular, s. 59(3) of the Act provides: Appeal hearing in absence of party 59(3) Where notice is given in accordance with subsection 57(5) and a party fails to attend the hearing of the appeal at the scheduled time and place or at the scheduled time and place of an adjourned hearing, the Municipal Board may hear and decide the appeal in the absence of the party. 14 Counsel for the Assessor submitted that “subject” municipalities usually do not appear at hearings, although in particular cases they may choose to do so.

When they do not appear, and assuming that notice has been given to them in accordance with s. 57(5), the Board may proceed in their absence. 15 That is what happened here. Notice was given and the R.M. did not appear, as was its right. The Board proceeded to hear the appeal and make its decision, as it was entitled to do under the Act . There was nothing irregular about the proceedings, since the R.M. was under no obligation to attend or participate.

If the applicant had wanted to adduce certain evidence from a municipal official, he could have taken steps to require the official to attend, but that did not occur. 16 In the circumstances, there is no valid question of jurisdiction that arises. The application for leave to appeal is dismissed. If the Assessor seeks costs, they may be spoken to if they are not otherwise agreed. J.A.