Antigonish/Guysborough Federation of Agriculture Applicant v. Municipality of the County of Antigonish v. the Town of Antigonish, 2012 NSSC 352

SUPREME COURT OF NOVA SCOTIA Citation: Antigonish/Guysborough Federation of Agriculture v. Antigonish County (Municipality), 2012 NSSC 352 Date: 20121010 Docket: Ant. 405985 Registry: Antigonish Between: Antigonish/Guysborough Federation of Agriculture Applicant v. Municipality of the County of Antigonish and the Town of Antigonish Respondents LIBRARY HEADING Judge : The Honourable Justice Peter P. Rosinski Heard: September 21, 2012 in Antigonish, Nova Scotia Subject: Judicial Review - CPR 7

Summary: County leased lands within the Town of Antigonish to Federation which conducted annual agricultural exhibitions on the property. In 2003, property changed by Director of Assessment from tax exempt to “ commercial ” taxable - no taxes paid by County since then. Town sets “ tax sale ” for October 3, 2012 to recover unpaid taxes payable. Federation as lessee seeks judicial review of that “ decision. ” Issue: Is judicial review available; and if so, should certiorari and prohibition be granted? Result: Judicial Review Application dismissed.

Mandatory provisions of Municipal Government Act [( ss. 134(2) and 140 )] require Town to sell property at tax sale. No “ decision ” to review. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE

THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET . SUPREME COURT OF NOVA SCOTIA Citation: Antigonish/Guysborough Federation of Agriculture v. Antigonish County (Municipality), 2012 NSSC 352 Date: 20121010 Docket: Ant. 405985 Registry: Antigonish Between: Antigonish/Guysborough Federation of Agriculture Applicant v. Municipality of the County of Antigonish and the Town of Antigonish Respondents Judge: The Honourable Justice Peter P. Rosinski Heard: September 21, 2012, in Antigonish, Nova Scotia Counsel: Daniel J.

MacIsaac, for the Applicant Adam Rodgers, for the County of Antigonish Duncan J. Chisholm, for the Town of Antigonish By the Court :

Introduction [ 1 ] For generations, agricultural exhibitions and fairs have been a happy late summer tradition throughout Nova Scotia. [ 2 ] They showcase people, produce, and livestock; they are an opportunity to educate, entertain and enrapture attendees; they are a focal point in the calendar of many members of those communities. [ 3 ] The Eastern Nova Scotia Exhibition is no exception.

Its grounds are located within the boundary of the Town of Antigonish though the grounds are owned by the County of Antigonish, which has repeatedly leased them on a long term basis to the Antigonish/Guysborough Federation of Agriculture. [ 4 ] This location of the grounds also makes the Town of Antigonish the municipal unit to which any property taxes owing would be payable. [ 5 ] Curiously perhaps to the casual observer, those exhibition grounds, though owned by the County and leased by a not for profit Federation of Agriculture, were assessed since 2003 as “ commercial ” and therefore taxable property. [ 6 ] Even more curious to a casual observer must be the realization that since 2003, the County has received annual property tax bills from the Town, yet has not contested the “ commercial ” taxable status of the property or paid the taxes payable.

Under the Municipal Government Act municipalities are legally obliged to sell at a “ tax sale ” any property for which there are taxes unpaid for the 3 most recent fiscal years. [ 7 ] The Town had set October 3, 2012 as the date for the “ tax sale ” of the exhibition grounds. The exhibition grounds in Antigonish are no exception it would seem.

The Antigonish/Guysborough Federation of Agriculture begs to differ – it says that these lands are properly considered to be wholly tax exempt. [ 8 ] The Federation has therefore asked this Court to review the “ decision ” of the Town directing its staff to proceed to sell the exhibition grounds in an effort to recover outstanding taxes owing to the Town by the County of Antigonish. [ 9 ] A review by this Court has limitations – a review is not like an appeal from the decision to classify the lands as “ commercial ” /taxable as opposed to tax exempt. [ 10 ] The decision to classify as “ commercial ” /taxable is made by a province wide authority – the independent Property Valuation Services Corporation since April 1, 2007 (previously a provincial government position known as the Director of Assessment).

An appeal thereof would involve a consideration of their decision, as they would be the named respondent before the Regional Assessment Appeal Board (not this Court). [ 11 ] In contrast, the Federation asks this Court to review the “ decision ” of the Town of Antigonish to proceed to sell the lands at a tax sale. [ 12 ] As a result of the inherent limitations placed on this Court to conducting such reviews, in the circumstances of this case, I am unable to prevent the tax sale of the exhibition grounds from proceeding.

This result would be no different even if the property is incorrectly classified as “ commercial ” /taxable, and therefore no taxes should have been assessed against the County, much less have been the basis for a tax sale for nonpayment.

[ 13 ] The result of my review would be no different in that case, because I am reviewing the decision, some might say the obligation, of the Town to sell the lands at a tax sale; I am not permitted to investigate or consider the correctness of the assessment authority ’ s decision to assess the property as wholly “ commercial ” and therefore taxable. [ 14 ] Why the County did not take action to avoid the circumstances that led to the Town having to put the property up for tax sale was not explained at the hearing before me.

I am therefore left with no choice, but to permit the tax sale to proceed. [ 15 ] I will now explain my reasons in greater detail. Background [ 16 ] As the case has been presented to me by the Federation, the “ record ” that I must review in this case is that of the Town of Antigonish Municipal Council. There is some question about what is the “ record ” of the “ decision-maker ” in this case. Counsel had agreed that the “ record ” shall consist of the two affidavits of Donald J.

MacLellan already filed, the affidavit of Stephen Feist and the file from the Director of Assessment – see the September 14, 2012 letter from legal counsel Daniel MacIsaac to the Court. [ 17 ] At the hearing, counsel further agreed that the “ record ” should also include a third affidavit of Donald J.

MacLellan, and the affidavits of Lloyd MacLeod, sworn September 20, 2012 and Linda Richardson, sworn September 19, 2012. [ 18 ] Subject to my comments later as to what is correctly considered “ the record, ” I will consider these affidavits as the tendered evidence in this hearing. [ 19 ] What these affidavits establish is that Donald J.

MacLellan is a member of the Antigonish/Guysborough Federation of Agriculture and has been for the past forty years. [ 20 ] His affidavits confirm that on June 12, 1937 the Province registered a survey plan and description of lands in the County of Antigonish which were to be expropriated “ for a purpose indirectly relative to the construction, maintenance and repair of highways of the Province, namely, to provide exhibition grounds for the County of Antigonish in exchange for exhibition grounds appropriated by the Minister of Highways for the purpose of providing protection to the eastern approach to the Town of Antigonish, said lands being deemed by the Minister of Highways necessary for the said purpose . . . . ” [ 21 ] By quit claim deed registered October 18, 1954, specifically in relation to the 1937 survey plan above noted, the Province deeded to the County of Antigonish property shown in that plan as the previously desired to be expropriated property, which is now described as PID Number 01265230 or “ the exhibition grounds, ” which continue to be owned by the County of Antigonish and have for many decades been the location at which the Eastern Nova Scotia Exhibition [ENSE] has been held.

The ENSE Commission was incorporated by special act of the Province of Nova Scotia being the Eastern Nova Scotia Exhibition Act , S.N.S. 1969, c. 130 as amended.

Generally stated, the objectives of the Commission are to hold an annual agricultural and industrial exhibition; to show and promote livestock exhibits, agriculture, produce, crafts and any other products related to agriculture or industry for the economic well- being of the exhibition; to make a show window for the 4-H program; and to provide an atmosphere of entertainment and educational awareness. [ 22 ] That deed read in part: AND WHEREAS the lands so expropriated are not now required by the Province of Nova Scotia for any public work or purpose; . . .

AND WHEREAS the Governor in Council by order dated the 3 rd day of August A. D., 1954, authorized the Minister of Highways and Public Works to convey to the Municipality of the County of Antigonish the lands hereinafter described. [ 23 ] Beginning in 1964, the County leased the lands for successive thirty year periods to the Antigonish County Federation of Agriculture. By December 1, 1994 when the lease was renewed, the leasing entity was named the Antigonish/Guysborough Federation of Agriculture. The name change is of no consequence to this hearing.

The two leases represent a continuing contract between the County and the Federation, represented most recently by the wording in the December 1, 1994 lease:

(2) That it [the Federation] will not during the term sell, assign or sublet the said described lot of land or any part thereof without the written consent of the Lessor [County] first had and obtained;

(3) That it [the Federation] will use the lands and premises for the purposes of holding agricultural fairs and exhibitions and for any and all purposes usually associated with the holding of agricultural fairs and exhibitions and may, in the discretion of the Lessee [the Federation] be used for other entertainment purposes that may be offered to the general public;

(4) That for the purposes set out in Clause 3 above (in this set of clauses) the Lessee [the Federation] may erect buildings for such purposes provided that such buildings shall only be constructed after a building permit is obtained from the Town of Antigonish and such proposed building will confirm to any and all By-Laws of the said Town of Antigonish ; and that any such proposed buildings shall meet with the approval of the Building Inspector of the Town of Antigonish; and shall only be erected after a Committee of the Lessor and Lessee shall have approved the location and plans of such buildings; . . .

The Lessor agrees to give the Lessee a further lease of 30 years after the expiration of the 30 year term herein provided for if the Lessee shall be continuing to provide agricultural fairs and exhibitions annually at the expiration of the term herein provided for; all terms and conditions to be negotiated between the parties hereto at that time. . . .

AND IT IS AGREED by and between the Parties hereto that should the Lessee not stage and hold an agricultural fair or exhibition on the said described lands for three consecutive years within the term hereby demised and leased, then this Lease and the unexpired portion thereof shall be immediately forfeited and the Lessor may treat this Lease as at an end and sell or re-let or otherwise deal with the premises in the same manner as if the Lease had not been made. . . . [ 24 ] Donald MacLellan ’ s September 12, 2012 sworn affidavit sets out the financial statements of the ENSE Commission from 2003 to 2011 inclusive.

The records reflect that the exhibition grounds on average tend to generate only a very modest income, arguably consistent with its not for profit status. [ 25 ] Such properties are assessed by the Property Valuation Services Corporation (PVSC) and its predecessor, the provincial Director of Assessment. Until 2003 the exhibition grounds were considered tax exempt property and thus generated no such tax revenue for the Town of Antigonish.

In 2003 the Director of Assessment for the Province reclassified the property as “ commercial ” and therefore no longer tax exempt. [ 26 ] Exhibit 9 of Donald MacLellan ’ s August 29, 2012 sworn affidavit contains a “ FILED ROLL CHANGE FORM ” dated May 14, 2003 and verified May 20, 2003. Under “ RATIONALE ” the form contains the following typed notation: THE 4 H BUILDING AND ARTS AND CRAFTS BUILDINGS WERE ASSESSED ON ANOTHER ACCOUNT WHICH HAS BEEN INACTIVATED. THE SCALE HOUSE AND THE SADDLE CLUB WERE NOT ASSESSED. THE LAND HAS BEEN REVALUED IN ACCORDANCE WITH THE LAND USE DICTIONARY AND LAND SIZE ADJ.

TO 7 AC FR 8.9 AC. THE PROPERTY HAS BEEN CHANGED FROM EXEMPT TO TAXABLE IN ACCORDANCE WITH SECTION 5(1)(h) [Which is safely inferred to be a reference to the Assessment Act ].”

[ 27 ] All of the evidence before me suggests that not only did the County not appeal the reclassification from tax exempt to taxable status for the exhibition grounds since 2003, but neither did they pay the outstanding tax bills which were sent to them by the Town of Antigonish. [ 28 ] Ultimately, while there are equivocal references in the evidence from which one might surmise why the County did not do so, such as in the affidavit of Stephen Feist, Chief Administrative Officer of the Town of Antigonish, I conclude that it is unnecessary for me to make a finding of fact regarding these matters. [ 29 ] I observe, however, that his affidavit does contain as Exhibit “ G ” the March 19, 2008 letter from the Town Clerk and Treasurer of the Town of Antigonish to the Municipal Clerk/Treasurer for the County of Antigonish respecting the exhibition grounds, and it reads in part: Please be advised that it is the intention of the town of Antigonish to proceed with legal action to pursue collection of property taxes owing for those lands known as the exhibition property.

The town solicitors advised the town that the town does not have any discretion to write off this debt owing. The amount owing including interest as of today’s date is $129,602.35. The town solicitor has further advised the town that under the Municipal Government Act , it must take action to recover this debt. The town may be prepared to review this matter if the county can have its solicitor indicate as to any

Section of the [ Municipal Government Act ] that would permit the town to exercise its discretion and write off this debt. [ 30 ] On February 14, 2012 the Town of Antigonish received a letter from Marvin MacDonald, Executive Director, Service Nova Scotia and Municipal Relations which was sent to all mayors and wardens of municipalities in Nova Scotia with a copy to their Chief Administrative Officers. It read in part as follows: By now most of you probably read the document produced by Grant Thornton on the overview of the misappropriation at the town of Bridgetown. . . . As part of this document, there is a

section on general guidelines for all municipalities. One of the most critical errors that was not followed up on a regular basis that partially led the Town of Bridgetown’s cash flow woes was tax sales. Section 134(2) states: Property shall be put up for tax sale if taxes are in arrears for the preceding three fiscal years. Since it is apparent the Town of Bridgetown was not complying with the Act , it is possible others are not as well, or are unaware of their responsibilities with respect to tax sales. [ 31 ] On May 14, 2012 the Antigonish Town Council directed staff to put the property up for tax sale.

This “ decision ” was acted upon by staff, who sent a letter dated August 2, 2012 to Mr. Dustin Swinkles, President of the Antigonish/Guysborough Federation of Agriculture advising as follows: Re: Exhibition Fair Grounds, James Street, Antigonish As you are aware, the County of the Municipality of the County of Antigonish has not paid property taxes on the Exhibition Grounds in Antigonish since 2003.

This has placed the Town of Antigonish in a rather difficult situation as the Municipal Government Act states that ‘Property shall be put up for tax sale if taxes are in arrears for the preceding three fiscal years.’ In accordance with Section 140(1) of the Municipal Government Act (MGA), upon the completion of the title search and any survey, the owner of the property and person with a mortgage, lien or other charge on the land shall be served with notice of intent to sell the land for taxes. Section 140(3) (

c) of the MGA requires the sale to be within sixty days from the date of this notice. To date the Municipality of the County of Antigonish owes the Town of Antigonish $332,744.55. The Town of Antigonish has just had the survey and title search completed and the final Tax Notice has been served, thus the Tax Sale date has been set for October 3, 2012 at 2 pm at the Town of Antigonish Council Chambers.

[ 32 ] Although it appears that the Antigonish/Guysborough Federation of Agriculture is a body established pursuant to the Federations of Agriculture Act , S.N.S. 1992 c. 5, and it is the lessee of the exhibition grounds, it appears that the ENSE Commission has a specific operational responsibility for conducting the finances of the exhibition grounds. As far as I can tell from the evidence, they appear to work together in a “ hand in glove ” arrangement.

None of the parties at the hearing have contested that they may be treated as the same entity for the purposes of this hearing. [ 33 ] Nothing determinative in this legal proceeding will turn on the distinction between them. The Proceedings Herein [ 34 ] On August 17, 2012 the Federation filed a Notice of Judicial Review pursuant to Civil Procedure Rule 7.05. It names as respondents the Municipality of the County of Antigonish and the Town of Antigonish.

The Notice read in part: Request for judicial review The applicant requests a judicial review of the decision by the Town of Antigonish to sell by way of Tax Sale a parcel of land referred to as the ‘Exhibition Fair Grounds’. Decision to be reviewed The decision is dated August 2, 2012 and is purported to have been made pursuant to the Assessment Act , being

Chapter 3 and the Municipal Government Act ,

Part 6 of the 1989 Statutes of Nova Scotia and amendments thereto. Grounds for review The applicant seeks review on the following grounds: 1. That the Exhibition Fair Grounds are owned by the Municipality of the County of Antigonish and are used for the purposes of the municipality. The Exhibition Fair Grounds are therefore exempt from taxation under

section 5(

h) of the Assessment Act , R.S., c. 23. In the alternative, the Applicant is an agricultural society that owns real property annexed to, and has a property interest in, the Exhibition Fair Grounds. The Exhibition Fair Grounds are therefore exempt from taxation under

section 5(

i) of the Assessment Act. R.S., c. 23. 2. That the Town of Antigonish erred when it relied on an assessment stating that the Exhibition Fair Grounds was “commercial taxable” and subsequently determined that the conditions necessary to give effect to a tax sale under the Municipal Government Act were met. Order proposed The applicant requests an order of: 1. Prohibition requiring the Town of Antigonish to cease proceeding to sell the Exhibition Fair Grounds by way of Tax sale. 2. Certiorari setting aside the decision to sell the Exhibition Fair Grounds by way of Tax Sale.

Records to be produced The Applicant foresees no difficulty obtaining the record and believes it will be delivered to the court and the respondents no later than ten days from the date of this notice. The record will be: 1. Notice of Decision, dated August 2, 2012. 2. Exhibit A - File of Director of Assessment for Assessment Account Number 3394573 and PID 1265230. 3. Exhibit B - File of the Town of Antigonish for Assessment Account Number 3394573 and PID 1265230.

Notice to a decision-making authority The respondent, the Town of Antigonish, is required by Civil Procedure Rule 7 – Judicial Review and Appeal to file one of the following no more than five days after the day the decision making authority is notified of this proceeding by delivery of a copy of this notice for judicial review: • A complete copy of the record, with copies of separate documents separated by numbered lettered tabs; • A statement indicating that the decision-making authority has made arrangements with the applicant to produce the record, providing details of those arrangements, and estimating when the return will be ready; • An undertaking that the decision-making authority will appear on the motion for directions and will seek directions concerning the records; • A

summary of reasons given orally without a record and your certificate the

summary is accurate, if you gave reasons orally and not on record. [ 35 ] On August 27 and September 6, 2012 respectively, the Town and the County of Antigonish filed a Notice of Participation pursuant to Civil Procedure Rule 7.08.

In its Notice the County indicated that “ this respondent says the Court should order as the applicant proposes. ” [ 36 ] The file herein also indicates that on September 4, 2012 counsel appeared for the Federation, the Municipality of the County of Antigonish, and Town of Antigonish, at a motion for directions before Justice Scaravelli of this Court. [ 37 ] At that appearance, both the motion for a stay or suspension of the tax sale proceeding before a decision is rendered by the Court, and the hearing respecting the merits of the judicial review, were set for hearing on September 21, 2012 before me. [ 38 ] The record was to be filed by the solicitor for the Town of Antigonish. [ 39 ] There was a concern that other interested parties may include the Property Valuation Services Corporation which conducts province wide assessments on properties for tax purposes, and the Attorney General of Nova Scotia.

[ 40 ] By letter dated September 18, 2012, Robert W. Andrews, on behalf of the Property Valuation Services Corporation, wrote to the Court: The Director of Assessment is not named as a party in this matter and has not filed a brief. The Director does not intend to send counsel to the hearing on September 21, 2012 in Antigonish unless such attendance is requested by the Court. [ 41 ] The Court did not request the attendance of the Director of Assessment. On September 19, 2012 Mr. Andrews wrote a follow- up letter in which he advised: . . .

My correspondence yesterday confirmed that I received a copy of the binder yesterday titled ‘ File of Director of Assessment ’ for comparison with the Director’s file. This review is complete. . . . Further to an affidavit of Linda Richardson, Legal Secretary, two documents from this historic file appear to have been missed during photocopying and are appended to an affidavit of Ms. Richardson. . . . A copy of Ms. Richardson’s sworn but unfiled affidavit has been shared electronically with counsel for the parties with copy of this letter. Hard copies will be sent to Mr.

MacIsaac for filing in Antigonish tomorrow, September 20, 2012. [ 42 ] As noted earlier, the affidavit was filed with the Court on September 20, 2012. [ 43 ] Also on file is a September 18, 2012 letter sent to Mr. MacIsaac as counsel for the Federation (and a copy was received by the Court) from Kathleen Naylor on behalf of the Department of Justice Legal Services Division, Province of Nova Scotia, which read in part: I represent the Attorney General of Nova Scotia in this matter.

We acknowledge receipt of your letter dated September 17, 2012 in which you enclosed a notice of judicial review which is scheduled for hearing on September 21, 2012. This will confirm my advice (by e-mail dated September 17, 20120 that the Attorney General will not participate in this matter. [ 44 ] I note the letter was copied to Mr. Robert W. Andrews, Solicitor for Property Valuation Services Corporation. [ 45 ] The “ Record ” was filed through Mr. MacIsaac, counsel for the Federation, and is the purported record of the Director of Assessment, rather than that of the Town of Antigonish Council.

The filed record was supplemented by the affidavit of Linda Richardson, legal secretary to the legal counsel to the Director of Assessment. Her affidavit speaks to the completeness of that record as filed before me.

Position of the Parties A – Federation of Agriculture [ 46 ] The Federation recognizes that by challenging the Town of Antigonish ’ s “ decision ” to proceed with the tax sale of the exhibition grounds on October 3, 2012, which “ decision ” was taken sometime between March and August 2012, it is indirectly challenging the classification of the property as “ taxable/commercial ” by the Director of Assessment and the Property Valuation

Services Corporation which has been annually applied to the property since 2003. [ 47 ] I note that strictly speaking, for assessment purposes, s. 26 of the Assessment Act allows only three potential taxable classifications (in part or in whole) for lands: residential; commercial; and resource. If any property ceases to be tax exempt, such change can be appealed pursuant to s. 9(4) and ss. 62 and 63 of the Assessment Act . [ 48 ] The Federation ’ s complaint is that the property should not have been reclassified from “ tax exempt ” to “ commercial ” and therefore taxable.

Moreover, its arguments suggest that it did not receive formal notice thereof until August 2, 2012 and it was therefore unaware that its long term lease of the exhibition grounds was in jeopardy because the County of Antigonish had not appealed the change from “ tax exempt ” to “ taxable ” in 2003, and because the County had not since then paid the taxes consequently owing. [ 49 ] More precisely, the Federation argues that the Director of Assessment erred in changing the status to “ taxable ” in 2003 and thereafter, as it failed to take into account that the original municipal purpose for the land was specifically to allow for the holding of agricultural fairs and exhibitions, and that that purpose has not changed.

That purpose is apparent in the relevant legislation from 1900 to present, and is also reflected in the expropriation documents, plans, deeds and leases relevant to those lands. [ 50 ] The Federation goes on to specifically rely on Sections 5(1)(

h) and(

l) of the Assessment Act as the basis for their argument that the property cannot be sold because it has always been, and remains, tax exempt. Although in some of its documents the Federation refers to Sections 5(1)(

i) of the Act , it is clear they intend throughout to refer to Section 5(1)(l). [ 51 ] Section 5(1) of the Assessment Act reads in part: 5

(1) The following property is exempt from taxation under this Act: (

h) the property of every municipality if occupied or used for the purposes of such municipality or unoccupied, excepting nevertheless that property owned, operated or managed by a municipality either directly or through the medium of a board or commission, for the purpose of producing, transmitting, delivering or furnishing electricity, natural gas, water or power directly or indirectly to or for the public, shall be assessed and taxed by that municipality; . . . (

l) the property of an agricultural society organized under

Section 9 of the Agriculture and Marketing Act except such property as is used mainly for commercial or industrial purposes; . . . [ 52 ] The Federation says that the property is exempt under Section 5(1)(

l) of the Assessment Act , even though on a superficial reading of

Section 9 of the Agriculture and Marketing Act , R.S.N.S. 1989, c. 6 as amended, the Federation “ is not currently an agricultural society organized under

Section 9 of the Agriculture and Marketing Act . ” [ 53 ] At paragraphs 21 – 23 of its brief, the Federation makes the case that it continues to have the benefit of

Section 9 of the Agriculture and Marketing Act . It argues that because prior to the enactment of the Federations of Agriculture Act , S.N.S. 1992 c. 5 in 1992, it was an agricultural society formed pursuant to the Agriculture and Marketing Act , with the enactment in 1992 of the Federations of Agriculture Act , it continued as a Federation under that legislation. Consequently it argues

Section 9 of the Agriculture and Marketing Act must be read so as to include the Federation, given its status under

Section 15 of the Federations of Agriculture Act . [ 54 ] The Federation also observes that even if the property is tax exempt vis-à-vis the County of Antigonish as its owner, the Town of Antigonish could still tax for commercial purposes such occupiers of the property pursuant to business occupancy assessments/taxation as rendered possible by

Section 12 of the Assessment Act . [ 55 ] The Federation recognizes that it may have been entitled to appeal the assessment change in 2003 pursuant to Section 62(3) of

the Assessment Act, even though it is now “out of time for appealing the assessment under the appeal provisions in the Assessment Act.” However, it argues that Section 6(2) of the Marketable Titles Act, 1995-96 S.N.S. c. 9 “provides this Court jurisdiction to considerwhether an assessment was proper up to 6 years following registration of the tax deed.” It says that jurisdiction, combined with therationale in cases like Scott Paper International Inc. v.

Attorney General of Nova Scotia and Taylor (1982), (NSSC), 52 N.S.R. (2d) 588 (S.C.) supports its position that if the Federation could challenge a tax sale deed up to six years followingregistration of the tax deed then surely it can do so before a tax sale. In my opinion however, none of the cases provided involved thesame factual matrix as we have here – namely a lessee of lands claiming that a tax sale of the leased lands should not be allowed toproceed because the property is wrongly assessed as “commercial” taxable rather than tax exempt. [56]

Section 62 of the Assessment Act reads:

(1) Any person complaining that he has been wrongfully inserted in or omitted from the assessment roll or that his property has beenundervalued or overvalued by the assessor or that his property has been wrongfully classified may give notice in writing to the recorderthat he appeals from the insertion, omission, valuation or classification and shall give a name and address where notices may be servedupon him by the recorder.

(2) Any ratepayer or the clerk of any municipality complaining that a person has been wrongfully inserted in or omitted from the roll orthat property of a person has been undervalued or overvalued by the assessor or that property of a person has been wrongfully classifiedmay give notice in writing to that person and to the recorder that he appeals from such insertion, omission, valuation or classification andshall give a name and address where notices may be served upon him by the recorder or the respondent.

(3) Any person having an interest in a property complaining that the property has been overvalued by the assessor or that the propertyhas been wrongfully classified may give notice in writing to the person assessed for the property and to the recorder that he appeals fromsuch valuation or classification and shall give a name and address where notices may be served upon him by the recorder or therespondent.

(4) Where a person complains that a property has been undervalued, or has been wrongly classified, and where the property is occupiedby a person who is assessed an occupancy assessment, then the person complaining shall give notice in writing to the occupier that heappeals from the valuation or classification and shall give a name and address where notices may be served upon him by the occupier, inaddition to any other notices required by this Section. [57]

Section 63 of the Assessment Act reads:

(1) The notice of appeal shall state with particularity the grounds of objection to the assessment and shall be given not later thantwenty-one days after the notices of assessment are served as provided in

Section 53.

(2) The notice may be in Form C in the

Schedule with such variations as circumstances require. [58] The appeal court for the hearing and determination of such appeals is the Regional Assessment Appeal Court. Further appealsfrom that court’s decision may be taken by the Nova Scotia Utility and Review Board within 30 days from the date the decision wasmailed by the recorder and not otherwise –

Section 86 of the Assessment Act. [59] Pursuant to

Section 30 of the Utility and Review Board Act, S.N.S. 1992, c. 11, a further appeal may be taken to the NovaScotia Court of Appeal “from an order of the Board upon any question as to its jurisdiction or upon any question of law, upon filing withthe Court a notice of appeal within thirty days after the issuance of the order.” [60] I note that there are limitation periods, or periods of time within which appeals must be started, in Sections 95 and 175 of theAssessment Act.

As counsel for the Town of Antigonish noted, municipalities require finality regarding assessments in order that theycan plan their budgets, and these limitation periods are designed to ensure that they can then rely on the assessments within their

municipality as a proper basis for the collection of municipal tax. [ 61 ]

Section 94 of the Assessment Act also provides for applications to be made to the Supreme Court allowing that “ the municipality, the Director or any person assessed may apply [by application] to the Supreme Court for the determination of any question relating to the assessment, except a question as to persons alleged to be wrongfully placed upon or omitted from the roll or assessed at too high or too low a sum or whose property is wrongly classified. ” This

section would only be helpful to the County of Antigonish as the “ person assessed. ” [ 62 ] Interestingly, since the Federation here seeks what has been traditionally referred to as a writ of certiorari and prohibition (i.e., a Supreme Court order setting aside the Town ’ s decision to sell the lands at a tax sale and preventing a future sale of those lands),

section 89 of the Assessment Act is also relevant. [ 63 ]

Section 89 of the Assessment Act reads as follows:

(1) No certiorari to remove any assessment, rate or order, or any proceedings of the council or court touching any assessment, rate or order, shall be granted, except upon motion in the first week of the next sittings of the Supreme Court in the county after the time for appealing to the county court has expired, and unless it is made to appear by affidavit that the merits of the assessment, rate, order or proceeding will by such removal come properly in judgment.

(2) Nor shall any assessment, rate, order or proceeding be quashed for a matter of form only.

(3) Nor shall the assessment roll, the rate roll or any general assessment or rate be quashed for any illegality in the assessment or rate of any person except as to such person. [ 64 ] As noted earlier, the Assessment Act ultimately strives for “ fast finality ” so as not to upset its annual budgeting which is oriented towards balanced budgets every year. [ 65 ]

Section 91 of the Assessment Act reflects this concern: The assessment roll, as finally passed by the assessment appeal court, shall be certified by the clerk as so passed and shall, subject to the provisions of this Act as to appeals to the Nova Scotia Utility and Review Board, bind all persons assessed in the roll notwithstanding any defect or error therein, or any irregularity on the part of the assessors, or in respect of the making up of the roll, or in the proceedings of the court, or any error or irregularity in the notices required to be given, or the neglect or omission to deliver or transmit such notices. [ 66 ] By letter to the Court on September 28, 2012, Federation counsel provided four cases in particular on the question of whether or not failing to appeal an assessment under the Assessment Act is fatal to the Federation ’ s position.

He suggested that “ these cases stand for the general proposition that the Court has no difficulty retaining its supervisory power despite the time to appeal the assessment has expired. However, the closest fit is the Taylor v. Scott Paper case which I have already discussed. ” [ 67 ] The cases the Federation relies upon include – generally: Attorney General of Canada v. Downtown Eastside Sex Workers United Against Violent Society and Sheryl Kiselbach , 2012 SCC 45 ; and specifically: Devereaux v. Saunders [1978] N.S.J. No. 45 ; Deslaurier v. Nova Scotia [1987] N.S.J.

No. 178 ; S & D Smith Central Supplies Ltd. v. Shaw Auto Rentals Ltd. [1992] N.S.J. No. 618 and Marsman v. Prevost [1987] N.S.J. No. 21 . [ 68 ] I note that, as the counsel for the Town observed in his October 3, 2012 written response – these cases deal with challenges to tax sale deeds, by the arguably true owners of those properties. Moreover, the County could still challenge any tax sale of the exhibition grounds after the sale takes place. None of these cases support the Federation ’ s argument that it can challenge the “ commercial ”

assessment in a judicial review such as in this case. B – The County of Antigonish [ 69 ] Generally it is fair to characterize the position of the County of Antigonish as in full support of the position of the Federation, and so I do not intend to outline its position in detail. However, I note that the County points out that the change from “ tax exempt ” to “ commercial ” classification happened at the time when ownership of the exhibition grounds had not changed and that therefore one can infer that the purpose must have been perceived to have changed, and that to have been the basis for the change in status.

That being the case, the County suggests that it is odd that the Town did not seek to collect business occupancy taxes from those persons who conducted business on the property. [ 70 ] On the other hand, in my opinion, the County cannot be said to come to court with “ clean hands ” since but for its failure to appeal the assessment, and its failure to pay the outstanding taxes, this dispute would not be before the Court at present. As counsel for the Town asked rhetorically “ Why was there no appeal by the County ” ?

The County did not file any affidavit evidence to explain its position in this regard between 2003 and 2012. Position of the Town of Antigonish [ 71 ] In

summary, the position of the Town is as follows: 1. The proper forum for a challenge to the assessment reclassification made since 2003 was under

Section 62 of the Assessment Act . It would appear that both the County, as owner, and the Federation, as lessee of the property, could appeal under that section. 2.

Although the Assessment Board may not have given notice of the change from tax exempt to taxable status formally to the Federation in 2003 or since then, the Town notes that Donald MacLellan who stated in his affidavit that he had been associated with the Federation for forty years, appears to have been present at meetings between representatives of the Town and the ENSE (Eastern Nova Scotia Exhibition Commission) at which the tax status of the exhibition grounds were discussed – see Exhibit A, B and D of Stephen Feist ’ s sworn September 13, 2012 affidavit. 3.

There is no “ decision ” of the Town for this Court to review because “ it is submitted that the Town has no choice under the circumstances but to put the property up for tax sale. ” The Town says this because Section 134(2) of the Municipal Government Act , S.N.S. 1998, c. 18 tells municipal councils that “ Property shall be put up for tax sale if taxes are in arrears for the preceding three fiscal years. ” And this may be done quickly – s. 140 of the Municipal Government Act . 4.

That the Town must accept and rely upon the assessment rolls that are compiled by the provincial authority – the Director of Assessment and more recently the independent Property Valuation Services Corporation. 5. That the Town could not by policy consider exempt from taxation the lands in question under

Section 71 of the Municipal Government Act , nor could they forgive the taxes as being not “ reasonably ” collectible under

Section 38 of the Municipal Government Act . 6. While the Federation or County could have appealed under

Section 62 of the Assessment Act , they are long past the time period within which they had to begin any appeal; similarly while the County as owner could have applied pursuant to

Section 94 of the Assessment Act for a legal determination of the assessment, the County is similarly past the time period within which it should have begun its application process thereunder for any assessments prior to 2012. 7. That in acting as it did the Town has done nothing unreasonable and merely complied with its legal obligation to sell the property.

[ 72 ] In support of its position, the Town notes that the Notice of Judicial Review cites the “ decision ” to be reviewed as the 2012 decision by the Town of Antigonish to sell the property for unpaid taxes.

Moreover, the Notice does not claim to be a request for an extension to file an appeal of the assessment (which would be made not to this Court, but rather the Regional Assessment Appeal Court); nor is the provincial assessment body, the Property Valuation Services Corporation named as a party, and consequently there is no direct or comprehensive evidence of why the tax exempt status was changed in 2003, and why it has remained so since then. [ 73 ] The Town also notes that it was specifically reminded of its obligation to sell such properties by the February 14, 2012 (received) memo from Marvin MacDonald, Executive Director of Service Nova Scotia – Exhibit K to the September 13, 2012 sworn affidavit of Stephen Feist. [ 74 ] Counsel for the Town points out that even if this Court grants the proposed order here and the Town ’ s decision to sell the property for taxes is reversed by the Court, and its entitlement to sell the property in the future at a tax sale for the taxes outstanding today is prohibited, the recorded assessment will still remain the same. [ 75 ] The Town strongly urges the Court not to look behind the tax sale in an attempt to assess the correctness of the assessment.

It argues that the proper assessment of the exhibition grounds as tax exempt or commercial cannot be made by this Court, as all the necessary evidence and information to do so is not before the Court. [ 76 ] Similarly, the Town suggests that although the Federation ’ s position is that putting off the tax sale will be of no great consequence, it will be a direct consequence for the Town which has budget expectations based on the receipt of the monies from the tax sale and/or full payment of the municipal taxes owing to date and in future. [ 77 ] Counsel for the Town also notes that the Federation is not without a means to recover from a tax sale of the exhibition grounds.

The Federation has a contract or lease with the County, and if the County has not appealed the “ commercial ” taxable status as assessed each year, and not paid the outstanding taxes for so long that the Town has no obligation but to sell the property at a tax sale, then arguably the County is in breach of the contract by not maintaining the property in a condition that it will be available to the Federation for its purposes. [ 78 ] Charles J.

McKenzie appears to have been regional representative for the Director of Assessment on May 21, 2003, according to the 2003 assessment notice sent to the County of Antigonish as found in the document at tab 17 of the file of Director of Assessment. That source is consistent with Exhibit 9 (filed roll change form regarding the exhibition grounds) to the August 29, 2012 sworn affidavit of Donald J.

MacLellan (which change appears to have been authorized by Charles McKenzie on 14 May 2003), and the September 20, 2012 sworn affidavit of Lloyd MacLeod, paragraph 2. [ 79 ] Notably, a November 10, 2005 letter sent to the Town of Antigonish by the same Charles (Skip) MacKenzie as Regional Manager, took the position that: Your letter of November 1, 2005 asks what the status, taxable or exempt, would be if the County of Antigonish were to deed over all exhibition lands to the Federation of Agriculture. The property is now assessed to the Municipality of the County of Antigonish as commercial taxable.

This classification requires that the property be taxed at the commercial tax rate by the Town of Antigonish. Sections 5(1)(

l) of the Assessment Act says the following properties would be exempt from taxation . . . If the organization is a society formed in this manner, the property would be exempt. It is my position that if the property continues to be used as it is now it would be exempt. My understanding is the property is used as exhibition grounds for a couple of weeks of the year and not for any commercial or industrial purpose. [ 80 ] Counsel for the Town therefore makes the point that the County could have transferred the property to the Federation and thereby also potentially avoided paying the tax in question. Legal Issues to be Determined

[81] Succinctly, I must determine: (

i) who is the “decision-making authority” and what is “the record”? (ii) does the Federation have standing to make this application for judicial review? (iii) do the merits of the application warrant granting the Federation its requested relief? It may be useful at this juncture to generally address some of the legal principles applicable in this case. [82] There are generally three basic means for persons to get relief from arguably illegal government actions when they appearbefore the Courts: 1. The ability to appeal a decision may be given by legislation – these are commonly called statutory appeals. 2.

Applications requesting Court orders that grant prerogative remedies – these remedies may only be granted by a Superior Court(the Nova Scotia Supreme Court) based on its common law jurisdiction.

Generally they include certiorari (which is an order to aninferior court of record or tribunal/administrative body, quashing their decision based on their having exceeded their statutoryjurisdiction); prohibition (prohibiting such bodies from proceeding with matters because to do so would be to exceed their statutoryjurisdiction); mandamus (ordering such bodies to proceed to carry out a public duty rooted in their statutory jurisdiction); habeas corpus(ordering such bodies who have detained persons in custody to produce them to the Court so it can test the legality of an imprisonment);quo warranto (an infrequently used writ which could compel a person who claims the right to hold a public office to appear before asuperior court to explain by what authority it purports to act); injunctive relief (such injunctions order specified persons to cease anddesist from specified conduct); and declarations of law (where a court is provided with factual background and makes a declaration as tothe legal rights of the persons involved). 3.

Private law remedies for damages (financial compensation), injunctions or declarations (notably these may be combined with anapplication for judicial review in proper cases). [83] In the case at bar the Court is specifically being asked to make orders for certiorari and prohibition. [84] Notably certiorari is the only example of judicial review which can be used to correct an error within the jurisdiction of thestatutory body being reviewed – see for example Lord Sumner’s definitive statement relating to the supervisory jurisdiction ofsupervisory courts in R. v. Nat Bell Liquors Ltd. (UK JCPC), [1922] 2 A.

C. 128 where he stated at p. 156: That the superior Court should be bound by the record is inherent in the nature of the case. Its jurisdiction is to see that the inferior Courthas not exceeded its own, and for that very reason it is bound not to interfere in what has been done within that jurisdiction, for in doingso it would itself, in turn, transgress the limits within which its own jurisdiction of supervision, not of review, is confined.

Thatsupervision goes to two points: one is the area of the inferior jurisdiction and the qualifications and conditions of its exercise; the other isthe observance of the law in the course of its exercise. [85] All other forms of judicial review require there to be some form of jurisdictional defect. As noted by Jones and deVillars,Principles of Administrative Law, Fifth Edition, 2009, Thomson Reuters, Toronto, Canada, at page 460:

Although almost all grounds for judicial review concentrate on the jurisdiction of a statutory delegate, certiorari is also sometimes available to correct errors of law made by the delegate within its jurisdiction. . . . In theory, this use of certiorari permits the court to make sure that all statutory delegates abide by the law of the land, which is conceived as being a unitary whole (fn. 5 - in other words, legal concepts do not have one meaning in the courts, and different meanings in administrative tribunals.

See note 54.] [ 86 ] Jones and deVillars at page 462 – 3 go on to warn: Unfortunately, no completely satisfactory test has ever been developed for distinguishing between jurisdictional and non-jurisdictional errors. . . . However difficult it may be to make the distinction between jurisdictional and intra-jurisdictional errors, the distinction is still important for at least five reasons. . . . Secondly, affidavits and other evidence are admissible if necessary to prove the existence of a jurisdictional error; but they cannot be considered by the court if a non-jurisdictional error of law is involved.

Thirdly, the court's anomalous power to correct intra-jurisdictional errors is limited to errors of law only, and does not apply to errors of fact (although note that factual matters may give rise to a jurisdictional error, particular in the context of the preliminary or collateral fact doctrine). Fourthly, this anomalous use of certiorari can only correct errors of law which appear on the face of the record, however that is defined, whereas jurisdictional errors do not have to be so disclosed.

Finally, other remedies besides this anomalous use of certiorari may not be available to review jurisdictional errors. [ 87 ] This technical discussion may have implications in the case at bar, since the Federation is essentially arguing that the Town of Antigonish Municipal Council relied on a legally invalid assessment classification of the exhibition grounds as "commercial" taxable.

Thus the Federation is in essence arguably claiming that there is an intra-jurisdictional error made by the Council. [ 88 ] Nevertheless, even when a claimant such as the Federation can make a case for why a court should grant certiorari or prohibition as against a statutory body, such as against the Antigonish Municipal Council, those remedies are not necessarily granted in all cases, because the court asks itself a further question: should the court grant certiorari or prohibition in this specific case? [ 89 ] As summarized by Jones and deVillars at page 482: Professor de Smith recognized only three cases in which the courts exercise their discretion to refuse prerogative remedies: (

a) where there is an appeal which provides a more effective remedy; (

b) where the applicant's conduct has disentitled him or her to relief; [for example, where the applicant has been guilty of unreasonable delay in bringing its application before court, especially where the delay would result in hardship or prejudice to the public interest or other parties who have acted in good faith on the strength of the statutory body's apparently valid decision; or similarly if the applicant has not acted in good faith, has been deceitful, withheld evidence or engaged in other discreditable conduct which calls its motives into question]; and (

c) where it would be pointless to issue the remedy. [where the error would not have affected the result, or put another way, there is no substantial wrong or miscarriage of justice apparent]. [my paraphrasing between the brackets] Preliminary Issues 1. Who is the "decision maker"? 2. What is the "record"?

[90] These questions may be conveniently dealt with at the same time as they are interrelated. Asking the question who is the"decision maker" suggests that a "decision" has been made. The making of a decision necessarily involves an exercise of discretion.

Notevery action taken by a statutory body is a "decision." For example, if the Registrar of Motor Vehicles receives proper information that aparticular driver has been found guilty of speeding under the Motor Vehicle Act, the Registrar will automatically take certainadministrative measures – possibly the addition of points to the person's driving record abstract, or issuing an automatic suspension ofdriving privileges, etc.

In such situations the statutory body did not have a choice – once it was presented with the requiredpreconditions, it had to act in a specific manner. [91] I remind myself that "decision" and “decision-making authority” are defined in Civil Procedure Rule 7.01: In this Rule, “decision”, includes all of the following: (

i) an action taken, or purportedly taken, under legislation, (ii) an omission to take action required, or purportedly required, by legislation, (iii) a failure to make a decision; “decision-making authority” includes anyone who makes, neglects to make, takes, or neglects to take adecision. “decision-making authority” includes anyone who makes, neglects to make, takes, or neglects to take a decision. [92] Pursuant to Civil Procedure Rule 7.09 (1) the decision-making authority must file with the court and deliver to the applicant:"one of the following no more than five days after the day of the decision-making authority is notified of the proceeding for judicialreview: (

a) a complete copy of the record, with copies of separate documents separated by pages with numbered or lettered tabs; (

b) a statement indicating that the decision-making authority has made arrangements with the applicant to produce the record, providingdetails of those arrangements, and estimating when the record will be ready; (

c) an undertaking that the decision-making authority will appear before the judge at the time of the motion for directions and seekdirections concerning the record. [93] Civil Procedure Rule 7.10 provides that a judge hearing the motion for directions may “settle” what will make up the record,and whether something is part of the record, or may assign responsibility to prepare, file and deliver the record. [94] As noted earlier, the parties here did not object to the “record” as including the file of the PVSC Director of Assessment, andthe affidavits of Donald J.

MacLellan, Lloyd MacLeod, Stephen Feist, and Linda Richardson. The parties also seem to agree that thedecision maker in question in this case is the Municipal Council of the Town of Antigonish. [95] Identifying the extent of the record is extremely important as reversible intra-jurisdictional errors of law must be apparent uponthe face of the record.

It has not been suggested to the Court that any evidence was presented to the Municipal Council for the Town ofAntigonish, nor that there were any notes taken by the council, at the time of this purported “decision” [which notes themselves wouldnot be evidence, but may be summaries of the evidence – Walker v. Keating (1973) (NS CA), 6 N.S.R. (2d) 1(NSCA)]; however, it is sometimes possible to extend the “record” by agreement.

[ 96 ] This issue is discussed by Jones and deVillars at pages 466-469 where they conclude: This quotation [Lord Denning in R. v. Northumberland Compensation Appeal Tribunal (1951) 1 K.B. 388 at 353 ] contemplates agreement in the context of the application for judicial review. Conceivably, the parties to an administrative proceeding might agree at the outset of those proceedings that certain material (such as the chairman’s notes) will constitute the record, and therefore, will become part of any return to the court on an application for certiorari .

If there is doubt about whether something should be included in the return, or whether the return is complete, the proper procedure is to apply to the court for a determination of this question prior to the hearing of the application for judicial review.

Similarly, the court may in an appropriate case dispense with filing unnecessary parts of the return. [ 97 ] In spite of the agreement of the parties as what is to be included in the “ record ” (I note that the court log notes of the motion for directions show that the “ record ” was to be filed by counsel for the Town of Antigonish), ultimately I must bear in mind that in my review of the “ decision ” of the Municipal Council of the Town of Antigonish, I should be guided by what information the Council had before it in coming to its “ decision ” to sell the lands at a tax sale. [ 98 ] I conclude that the “ decision ” being directly challenged by the Federation is that of the Town of Antigonish to proceed with a tax sale of the exhibition grounds on October 3, 2012.

Necessarily therefore the “ decision-maker ” is the Municipal Council of the Town of Antigonish. Therefore, strictly speaking, the “ record ” must be that of the information before the Municipal Council of the Town of Antigonish.

A “ record ” specifically of that information has not been filed in this case, whereas the file of the PVSC Director of Assessment has been filed. [ 99 ] Stephen Feist, in his affidavit, points out that he has been the Chief Administrative Officer of the Town of Antigonish since December 2011, and has reviewed the files of the Town of Antigonish relevant to the tax sale of the exhibition grounds. His affidavit contains sufficient detail as to the “ record ” of the information before the Municipal Council regarding its “ decision ” to proceed to sell the exhibition grounds at a tax sale.

I say this because of the unusual circumstances of this application for judicial review, including the fact that I also have before me the “ record ” of the Director of Assessment regarding the assessment of the lands, and the affidavits by agreement. [ 100 ] Moreover, I keep in mind the purpose of the “ record ” in proceedings such as this. As Jones and deVillars stated at p. 465: As errors of law must be apparent upon the face of the record, the extent of the record is a key consideration. What, then, constitutes the record? Lord Denning said this in the R. v.

Northumberland Compensation Appeal Tribunal case: It has been said to consist of all those documents which are kept by the tribunal for a permanent memorial and testimony of their proceedings: see Blackstone ’s Commentaries , Vol. III, at p. 24. But it must be noted that, whenever there was any question as to what should, or should not be, included in the record of any tribunal, the Court of King’s Bench used to determine it. . . .

It appears that the Court of King’s Bench always insisted that the record should contain, or recite, the document or information which initiated the proceedings and thus gave the tribunal its jurisdiction; and also the document which contained their adjudication. . . . Following these cases, I think the record must contain at least the document which initiates the proceedings; the pleadings, if any; and the adjudication; but not the evidence, nor the reasons, unless the tribunal chooses to incorporate them. If the tribunal does state its

reasons, and those reasons are wrong in law, certiorari lies to quash the decision. [ 101 ] Also I have placed before me by Counsel as part of the “ record, ” materials regarding the assessment of the lands, and the affidavits by agreement, which do provide context to the arguments put forward, particularly by the Federation. [ 102 ] However, I consider the “ record ” for purposes of my review to be the “ record ” of the Town Council regarding its direction to staff to sell the exhibition grounds for taxes unpaid by the County pursuant to ss. 134(2) and 140 of the Municipal Government Act .

While technically the “ best evidence ” of that record would be certified minutes of meetings of the Council regarding its consideration of this issue, I am satisfied that the affidavit of Stephen Feist, Chief Administrative Officer for the Town, is a proper substitute therefore. It also has the benefit that it sets out the context associated with the Town Council ’ s direction to its staff to proceed with a tax sale of the exhibition grounds. [ 103 ] Stephen Feist states that on May 14, 2012 Town Council directed staff to put the property up for tax sale.

He noted that the Town determined it cannot legally write off the taxes for the property under

Section 38 of the Municipal Government Act , nor allow an exemption under

Section 71 of the Municipal Government Act . [ 104 ] He points out that the Town received on February 14, 2012 the directive from Marvin MacDonald, Executive Director for Service Nova Scotia, reminding all mayors and wardens that the “ property shall be put up for tax sale if taxes are in arrears for the preceding three fiscal years, ” being a recitation of the statutory obligation upon municipalities contained in Section 134(2) of the Municipal Government Act . [ 105 ] In his affidavit he added at paragraphs 33 and 34: The Town made the decision to put this property up for tax sale on August 2, 2012 because it felt it was legally obligated to do so under the Municipal Government Act ; The Town has pursued every avenue it can conceive to avoid putting this property up for tax sale but is of the opinion it has no option but to proceed with the tax sale. [ 106 ] In

summary, I conclude that the file of the PVSC Director of Assessment, Linda Richardson ’ s affidavit, and that of Lloyd MacLeod would not normally be included in the “ record ” of the Town of Antigonish. They merely provide context, as do the affidavits of Donald MacLellan. Does the Federation Have Standing to Make This Application for Judicial Review? [ 107 ] As put by Jones and deVillars at page 646: The law does not permit just any concerned citizen to challenge the decision of a public delegate.

In order to possess standing to obtain one of the prerogative remedies, an applicant must be “aggrieved”, or “affected”, or have some other “sufficient interest”. In general, those with an academic interest and mere busy-bodies need not apply. The decision as to when standing ought to be granted is always one in the court’s discretion and as noted by T. A.

Cromwell in Locus Standi, A Commentary of the Law of Standing in Canada : The cases [on standing] are not decided upon verbal formulae or lists of protected interests, but on the basis of the Court’s perception of the relationship between the applicant and the challenged decision, the nature of the statutory scheme out of which the decision issued, and the merits of the complaint. In addition to these factors, the courts are recognizing that who is a person aggrieved is a matter of degree rather than a test, the application of which results in clear-cut answers.

[ 108 ] More recently, now as a judge of the Supreme Court of Canada, Justice Cromwell stated for the unanimous Supreme Court of Canada in Attorney General of Canada v. Downtown Eastside Sex Workers United Against Violent Society and Sheryl Kiselbach , 2012 SCC 45 at paragraphs 1 and 2 : [1] This appeal is concerned with the law of public interest standing in constitutional cases. . . . The traditional approach was to limit standing to persons whose private rights were at stake or who were specially affected by the issue.

In public law cases, however, Canadian courts have relaxed these limitations on standing and have taken a flexible, discretionary approach to public interest standing, guided by the purposes which underlie the traditional limitations. [2] In exercising their discretion with respect to standing, the courts weigh three factors in light of these underlying purposes and of the particular circumstances.

The courts consider whether the case raises a serious justiciable issue, whether the party bringing the action has a real stake or a genuine interest in its outcome and whether, having regard to a number of factors, the proposed suit is a reasonable and effective means to bring the case to court: . . .

The courts exercise this discretion to grant or refuse standing in a “liberal and generous manner”. [ 109 ] While that case did involve public interest standing, Justice Cromwell did touch on the traditional analysis and concerns. [ 110 ] In the case at bar the Federation clearly has standing to make this application for judicial review. I simply note that under Section 62(3) of the Assessment Act it very likely could have appealed the assessment, had it been aware that the classification of the exhibition grounds were changed in 2003 from tax exempt to “ commercial ” taxable.

Considering all the circumstances in this case, the Federation has a “ sufficient interest ’ to have standing.

Merits of the Application for Judicial Review [ 111 ] The decision of the Town of Antigonish to proceed to sell the exhibition grounds at a tax sale is challenged by the Federation as being illegal. [ 112 ] The Federation argues that this Court must look behind the perfunctory process that the Town of Antigonish followed in determining that at least the three most recent years of taxes were in arrears, and that therefore the Town had a duty under Sections 134(2) and 140 of the Municipal Government Act to sell the property at a tax sale. [ 113 ] The “ record, ” consistent with other evidence, establishes that the Town of Antigonish unquestionably had not received any payment from the County of Antigonish for taxes assessed against the exhibition grounds since sometime in 2003.

Thus, unquestionably at least the three most recent years of taxes were in arrears, and that being the case the Town of Antigonish had a duty under Section 134(2) of the Municipal Government Act to sell the property at a tax sale. The Town of Antigonish had no choice. The assessment classification of the exhibition grounds as “ tax exempt ” or “ commercial ” taxable was a decision made by the Director of Assessment and more recently by the Director of the Property Valuation Services Corporation.

The Town of Antigonish was within its rights to rely on the determination of those bodies that, since 2003, the exhibition grounds were properly classified as “ commercial ” and therefore taxable. [ 114 ] The only involvement of the Town of Antigonish would be in the mechanical application of its tax rate to the property, classified as “ commercial, ” with the resulting dollar amount of taxes owing each year. While I appreciate that Civil Procedure Rule 7.01 defines “ decision ” in a broad manner, the Town of Antigonish did not make a “ decision ” in the circumstances of this specific case.

It had a legal duty to apply its tax rate to the taxable “ commercial ” property of the County of Antigonish as determined by the provincial assessment authority. [ 115 ] Thus, there is no “ decision ” of the Town of Antigonish to be judicially reviewed by this Court. [ 116 ] That being the case, there is no reason to go on and examine whether the Town of Antigonish exceeded its jurisdiction in

proceeding to have the exhibition grounds sold at a tax sale or to examine whether contained within its decision were certain intra- jurisdictional errors of law on the face of the record. [ 117 ] Even if one could characterize the Town Council ’ s direction to its staff to sell the property at a tax sale as a “ decision, ” I would reach the conclusion that, even using a correctness standard of review, the Town ’ s decision to proceed as it did, is not reversible.

The Council ’ s decision is correct in law; it did not exceed its jurisdiction, nor did it make any error of law in directing its staff to sell the exhibition grounds at a tax sale. [ 118 ] Whether some part of the property is tax exempt under ss. 5(i), 5(l), and 29 of the Assessment Act , or whether the property is properly classified as “ commercial ” in part or in whole, is a matter exclusively for the assessment authorities, namely the Property Valuation Services Corporation, which will be guided in part by Sections 40 – 43 of the Assessment Act . [ 119 ] I keep in mind as well that arguably the limitation period in

Section 89 of the Assessment Act , may prevent the Federation ’ s application for certiorari to be granted in any event.

Conclusion [ 120 ] As presented to the Court, the application for judicial review by the Federation, motivated by its desire to prevent the sale of the exhibition grounds for tax arrears owing by the County of Antigonish, must be dismissed by this Court. [ 121 ] As the Town of Antigonish has been the successful party in this matter, pursuant to Civil Procedure Rule 77, Tariff C, I award $1,000 costs in favour of the Town of Antigonish, to be payable forthwith as follows: $500 as against the Federation and $500 as against the County of Antigonish. [ 122 ] Given the circumstances, I will extend the order staying or suspending the tax sale for a further forty-five days, to commence on the date of the issuance of the order of dismissal herein, to preserve the property until the parties can appear before the Court of Appeal, should there be an appeal of my decision.

Rosinski, J.