2018 NUCJ 24, 2018 NUCJ 24

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: Baffinland Iron Mines Corporation, et al. v.

The Territorial Board of Revision and the Government of Nunavut, as represented by the Department of Community and Government Services, 2018 NUCJ 24 Date: 20180918 Docket: 08-17-537 CVA 08-17-538 CVA Registry: Iqaluit Applicant: Baffinland Iron Mines Corporation -and- Respondents: The Territorial Board of Revision and the Government of Nunavut, as represented by the Department of Community and Government Services -and- Applicant: Qikiqtani Inuit Association -and- Respondents: The Territorial Board of Revision and the Government of Nunavut, as represented by the Department of Community and Government Services ________________________________________________________________________ Before: The Honourable Mr.

Justice Earl Johnson Counsel (Applicant, BIM): Jenna Anne de Jong Counsel (Applicant, QIA): Sylvie M. Molgat Counsel (Respondent, GN): Jane O’Neill, Q.C., and Victoria Crosbie

Counsel (Respondent, TBR): Norman Boose Location Heard: Iqaluit, Nunavut Date Heard: May 15, 2018 Matters: Judicial review, standard of review, duty of fairness, and right of notice owed under the Property Assessment and Taxation Act , RSNWT (Nu) 1988, c. P-10. REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication) TABLE OF CONTENTS I. INTRODUCTION .. 4 II. EVIDENCE . 6 III. FACTS . 7 IV. ISSUES . 11 A. What is the appropriate standard of review? . 11 1. Arguments . 11 i. QIA .. 11 ii. BIM ... 12 iii. GN .. 13 iv. TBR .. 13 2. Analysis . 13 B.

Did the TBR breach the rules of procedural fairness by not giving BIM or QIA an opportunity to be heard before making the decision that the Complaints were out of time? . 16 1. Arguments . 16 i. QIA .. 16 ii. BIM ... 22

iii. GN .. 27 iv. TBR .. 29 2. Analysis . 30 C. If the TBR breached the rules of procedural fairness, was the TBR Decision that the Complaints were out of time correct? . 34 V. CONCLUSION .. 39 VI. COSTS . 41 I.

INTRODUCTION [ 1 ] The applicant Baffinland Iron Mines Corporation (BIM) is a Canadian mining company that has operated an iron ore mine known as the Mary River Project in the Qikiqtani region of North Baffin, Nunavut (Mary River Lands) since 2013. [ 2 ] The applicant Qikiqtani Inuit Association (QIA) is a not-for-profit society and a Designated Inuit Organization under the Nunavut Land Claims Agreement (NLCA).

QIA’s responsibilities include the management of Inuit Owned Lands in the Qikiqtaaluk Region on behalf of and for the benefit of Qikiqtani Inuit. [ 3 ] BIM leases the Mary River Lands from the QIA pursuant to a commercial lease dated September 6, 2013. QIA is the Designated Inuit Organization that owns the Mary River Lands under the NLCA. [ 4 ] The respondent Government of Nunavut (GN) raises revenue by the taxation of lands and improvements in Nunavut under the authority of the Property Assessment and Taxation Act , RSNWT (Nu) 1988, c. P-10 [ PATA ].

The Director of Assessment (Director) is appointed under s. 109 of PATA and is responsible for the administration of PATA . Sections 6 and 7 of PATA mandates that an assessor assess the lands and improvements for the General Taxation Area (GTA), called the General Taxation Area Assessment Roll (Assessment Roll).

Section 17 of PATA requires that the must record all pertinent information including the location of the assessed property, the names and addresses of the assessed owners and the assessed value of the property. Under s. 25 the Director must prepare and certify the Assessment Roll as complete on or before October 31 every year. As required by s. 27, within 21 days after the Director prepares the Certified Assessment Roll for property in the GTA under s. 26(2), he or she: shall cause a notice of assessment to be mailed to each person described in subsection (2) at the address shown on the certified assessment roll first revision [ 5 ]

Section 33 of PATA creates a Territorial Board of Revision (TBR) for the GTA with jurisdiction to hear complaints filed by any person regarding an assessment as set out in s.

Section 48 creates an Assessment Appeal Tribunal (AAT) to hear appeals referred by the chairperson of the Tribunal. [ 6 ] Since 2014. both QIA and BIM have disputed the attempted taxation of the Mary River Lands by the GN. Both BIM and QIA believe that under the NLCA they are exempt from property tax and all other levies and charges assessed under PATA . [ 7 ] BIM and QIA filed complaints under s. 40(1) of PATA for the 2014 and 2015 Notices of Assessments for the Mary River Lands. The respondent TBR directed that the Mary River Lands be reassessed.

BIM and QIA then filed Notices of Appeal in accordance with ss. 45(4) and 64 and those appeals have not been heard. [ 8 ] The 2016 Notices of Assessments for the Mary River Lands were delivered to the post office in Iqaluit on November 28, 2016. For reasons discussed later, QIA received the Notice of Assessment on December 13, 2016, and BIM received it on January 23, 2017.

[9] QIA filed a complaint on January 23, 2017 and BIM filed a complaint on January 24, 2017, about the 2016 Notice of Assessmentson the same grounds as the 2014 and 2015 complaints. [10] In a short six line email dated August 30, 2017, the Secretary of the TBR informed QIA and BIM that the Board would not hearthe complaints because they were filed more than 45 days from the December 2, 2017, mailing date stated on the Notice of Assessment(Decisions). [11] BIM and QIA filed separate Originating Notices of Motion for judicial review of the August 30, 2017, TBR Decisions refusing tohear the complaints. [12] On October 12, 2017, the parties to both Originating Notices of Motion filed a consent Order that both motions be heard togetherand on February 7, 2018, Browne J. ordered that all evidence and materials in either application could be utilized in the other application.For the purposes of this judgment and pursuant to Rules 27 and 56 of the Rules of the Supreme Court of the Northwest Territories, NWTReg (Nu) 010-96 [Rules of Court].

I have changed the style of cause to include both applications. [13] The TBR also filed written argument and participated in the hearing. [14] The GN supports the decision of the TBR and opposes the applications of BIM and QIA. II. EVIDENCE [15] The TBR filed a record as required by Rule 598 (1) of the Rules of Court. Both BIM and the GN filed what was described as a“compendium of documents,” while QIA filed what was described as an “application record”.

They include the affidavits of StephanieAnderson (Anderson), Brian Lannan (Lannan), Scott Wells (Wells), and Gerald “Gerry” Towns (Towns), as well as transcripts of theircross-examination. [16] The record filed by TBR was rather minimal compared to the evidence that was filed by the other parties because TBR’s recordconsisted solely of their refusal to hold a hearing. TBR’s decision not to hold a hearing on its jurisdiction to hear a complaint forms thebasis for QIA and BIM’s application.

Both applicants alleging that there was a breach of procedural fairness or a denial of natural justice. [17] There are no other sections in Rule 598 authorizing additional written evidence to be filed beyond the record filed by the TBR. As Inoted in Mahe v Nunavut Liquor Licensing Board, 2006 NUCJ 23 , the general rule is that a court in a judicial reviewapplication is restricted to the record prepared by the tribunal. However, as noted at para 15 of McFadyen v Canada (Attorney General),2005 FCA 360 , there is an exception where the grounds for review are any of the various forms of jurisdictional error.

This principle has been approved by the Supreme Court of Canada on numerous occasions: see, for example, Canadian Union of PublicEmployees, Local 301 v. Montreal (City), (SCC), [1997] 1 S.C.R. 793 at para. 86; R. v. Miller, (SCC),[1985] 2 S.C.R. 613 at paras. 15 and 23-26; Cardinal v. Kent Institution, (SCC), [1985] 2 S.C.R. 643 at para. 13. Abreach of procedural fairness is also one of the forms of jurisdictional error to which this principle applies: see Chen v. Canada (Ministerof Citizenship and Immigration) (1999), 240 N.R. 376, (1999) (FCA), 174 D.L.R. (4th) 165 at para. 10 (F.C.A.);Robert W.

Macaulay & James L.H. Sprague, Practice and Procedure Before Administrative Tribunals, looseleaf, vol. 3 (Toronto:Thomson Carswell, 1988) at 28-56.2ff; Donald J.M. Brown & The Hon. John M. Evans, Judicial Review of Administrative Action,looseleaf, vol. 2 (Toronto: Canvasback Publishing, 2004) at 6-62ff. [18] Since one of the grounds advanced in the application is the denial of procedural fairness in failing to hold a hearing on whether theTBR had jurisdiction to hear the BIM’s complaint, I am satisfied that additional evidence is admissible in law to address the issuesargued in this application.

In any event the parties have all agreed that the evidence filed by all three parties is admissible in this

application. III. FACTS [ 19 ] BIM and QIA entered into a commercial lease dated September 6, 2013. It was a term of the lease that BIM was obligated to pay all rates, tax charges, and assessments charged for the Mary River Lands. [ 20 ] Prior to 2014, QIA had never received or seen any property assessments for the Mary River Lands. [ 21 ] The 2014 assessment was initially issued to BIM. However, after a complaint by BIM, a new 2014 assessment was issued substituting QIA as the new assessed owner. The TBR directed that the Mary River Lands be re-assessed and QIA filed an appeal of the new 2014 assessment on the grounds that the Mary River Lands are exempt from taxation under

Article 22 of the NLCA. A new Notice of Assessment was issued to QIA on August 24, 2015, showing QIA as the assessed owner. [ 22 ] In November 2015, a Notice of Assessment was issued to QIA similar to the 2014 assessment. Following complaints filed by BIM and QIA, the 2015 Notice of Assessment was corrected and re-issued on October 7, 2016.

The corrected Notice was sent to both QIA and BIM at the direction of the TBR and a similar reassessment ordered. [ 23 ] QIA filed an appeal of the 2015 Assessment on the same grounds as the 2014 appeal. [ 24 ] Towns is a civil servant employed as the Project Manager in the Nunavut Property Assessment Office of the Department of Community and Government Services of the GN.

The GN has contracted with the Qikiqtaaluk Corporation (the Contractor) to provide assessment services and Towns ensures that the contractor completes the land and improvement assessments in accordance with the NLCA, PATA , and the Assessment Manual. The Director of Assessment is Robert Chapple (Chapple). [ 25 ] On July 25, 2016, QIA received a letter from Towns advising that he was preparing the 2016 assessments. [ 26 ] Towns prepared the Notices of Assessment for 2016, including the Mary River Lands Assessment Notice.

The Notice indicated that the assessed owner was QIA and stated the mailing date was December 2, 2016. [ 27 ] On or about November 27, 2016, Towns placed the Assessment Notice for the Mary River Lands in an envelope addressed to QIA, at P.O.Box 1340, Iqaluit NU, XOA 1HO.

On November 28, 2016, Towns and Travis Towns, a property assessor, delivered the 2016 Notices of Assessments including the Notice of Assessment for the Mary River Lands to the Iqaluit post office. [ 28 ] The 2016 Notice stated that “Complaints must be Received Before January 16, 2017.” Para 5 of the Notice also stated: Complaints sent or delivered, must be received by the Secretary of the Board of Revision, NOT LATER THAN 45 DAYS from the date of the mailing of this notice. The mailing date appears on the front of this notice.

All complainants will be notified where and when the Territorial Board of Revision will sit. [ 29 ] Towns deposed in his affidavit that he did not send the Assessment Notice for the Mary River Project to BIM because it is his practice to send it only to the assessed owner unless specifically requested to send it to a tenant or as directed by the TBR as occurred in 2015 Notice of Assessment.

[ 30 ] On December 1, 2016, Towns placed an advertisement with the Nunavut News of the North (NNN) and the Kivalliq News to advise the public of the mailing of the 2016 Assessment Notices as the Nunavut Tax Assessment Office had done for the previous 18 years. Both publications are available in all GTA communities and in the City of Iqaluit.

The publications stated that complaints must be made within 45 days of the date of the mailing of the Notice of Assessment. [ 31 ] Wells, QIA’s Director of Finance, did not notice any public notices on the community bulletin boards at the post office or in the main lobby of the Iqluvut Building in Iqaluit and did not hear public service announcements over CBC about the Notices of Assessment being mailed on December 2. [ 32 ] QIA’s offices closed for the Christmas holidays on December 16, 2016 and re-opened on January 3, 2017.

During that period, QIA’s mail remained in the post office box, but any mail received over the holidays was picked up on January 3, 2017. [ 33 ] On January 17, 2017, Michael Osland (Osland), outside legal counsel for QIA, asked Wells if QIA had received a 2016 Assessment Notice for the Mary River Lands.

Osland reminded Wells that the previous 2014 and 2015 Assessments under appeal came out late in the year or in the early new year. [ 34 ] Since Wells had not received anything, he asked William Bathory (Bathory), QIA’s Director of Major Projects and QIA’s primary contact person for BIM regarding the Mary River Lands, whether he thought a 2016 Notice of Assessment might have been sent directly to BIM as had been the case prior to 2014.

Bathory was not aware of any assessment being received. [ 35 ] After being unable to obtain the 2016 Assessment Notice from the GN Department of Finance, Scott emailed Towns on Friday, January 20, 2017, and requested a copy of the Assessment Notice. [ 36 ] On January 18, 2017, Chapple emailed the Secretary of the TBR, Lannan.

He stated “the last day for submitting complaints was January 16, 2017.” He then asks the question “Did you receive any complaints?” [ 37 ] On January 21, 2017, Towns emailed Scott a copy of the 2016 Assessment Notice and it came to Scott’s attention when he arrived at work on Monday, January 23, 2017. [ 38 ] Scott immediately forwarded the Assessment Notice to Osland who attended to filing a Complaint on January 23, 2017, and to forwarding a copy to BIM.

Lannan, acknowledged receipt of the Complaint on January 23, 2017. [ 39 ] On January 24, 2017, BIM filed a Complaint with the TBR for the 2016 Mary River Project Assessment Notice. [ 40 ] Anderson, the Vice President and Chief Financial Officer of BIM, tried to contact Towns by telephone between January 5 and January 17, to determine if the 2016 Assessment Notice for the Mary River Project had been sent, but was unable to reach him. However, she did not send him any emails. [ 41 ] On January 17, 2017, Anderson emailed Towns and advised that all communications with the GN should be directed to her.

She did not mention the 2016 Notice of Assessment [ 42 ] On January 18, 2017, Towns responded to Anderson’s email and followed up with additional emails on April 26, 2017, and August 22, 2017, which Anderson responded to on August 24, 2017. [ 43 ] On August 30, 2017, Lannan sent QIA a short written decision from the TBR (QIA Decision). The Decision stated that QIA’s 2016 Complaint would not be heard by TBR because it was outside the 45 day time limit specified in the Notice of Assessment.

[ 44 ] On August 30, 2017, Lannan used identical wording in a separate decision addressed to BIM (BIM Decision) and advised it that its 2016 Complaint would not be heard because it was outside the 45 day time limit specified in the Notice of Assessment. [ 45 ] The TBR did not hold a hearing and give QIA and BIM an opportunity to be heard before sending the QIA and BIM Decisions. [ 46 ] A subsequent investigation carried out by QIA in late 2017 revealed that QIA received the Notice of Assessment on December 13, 2016.

Instead of forwarding the Assessment Notice to QIA upper management, an employee left it in an unmarked file in the Lands Department. IV. ISSUES [ 47 ] What is the appropriate standard of review? [ 48 ] Did the TBR breach the rules of procedural fairness by not giving BIM or QIA an opportunity to be heard before making the decision that the Complaints were out of time? [ 49 ] If the TBR breached the rules of procedural fairness was the TBR decision that the Complaints were out of time correct? A. What is the appropriate standard of review? 1. Arguments i.

QIA [ 50 ] During oral argument, QIA’s counsel conceded that Dunsmuir v New Brunswick , 2008 SCC 9 , [2008] 1 SCR [ Dunsmuir ], Ontario (Energy Board) v Ontario Power Generation Inc. , 2015 SCC 44 , [2015] 3 SCR 147 [ Ontario Energy Board ] , and Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd, 2016 SCC 47 , [2016] 2 SCR 293 [ Edmonton Capilano ] , suggest that the presumed standard of review in this application should be reasonableness. It is implicit from counsel for QIA’s oral submissions that this concession arose because QIA’s substantive argument was directed at the TBR’s

interpretation of subsection 40(3). [ 51 ] However, in Ms. Molgat’s oral and written submissions, she made brief comments on the alleged breach of procedural fairness by the Director of Assessments and the property assessor flowing from paras 159 to 161 of Boardwalk Reit LLP v Edmonton (City) , 2008 ABCA 220 [ Boardwalk ] . She argued that at a minimum it was incumbent on the property assessor to have given QIA proper advance notice of the mailing of the assessments and the date their Complaint had to be filed.

The taxing authority’s decision to simply lie in the weeds and reveal nothing until the deadline for complaints had passed violated the rules of natural justice and procedural fairness owed to QIA. [ 52 ] QIA submitted a lengthy jurisdictional argument based on the factual allegation that the GN and TBR failed to prove the date that the Notice of Assessment was actually mailed and that the public notice advertising was defective. Because the mailing date is unknown it argued that the 45 days specified in subsection 40(3) should run from the date that QIA received the Notice of Assessment.

Since QIA’s Complaint was been received by the TBR on January 23, 2017, or 41 days later, it was within the time period contemplated by PATA . ii. BIM

[53] BIM’s counsel advanced a substantive three part procedural fairness argument that provided the foundation for an argument thatthe TBR lacked jurisdiction to make the Decisions. Ms. De Jong did not express the same concession as QIA’s counsel about thestandard of review in her initial submissions, but in her reply it became clear that she was advancing a correctness standard based on theexception set out in Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 SCR 339 [Khosa].

At para 43, the Courtconfirmed that procedural fairness issues are to be determined by a court on the basis of a correctness standard. The Supreme Courtreiterated this principle again at para 79 of Mission Institution v Khela, 2014 SCC 24, [2014] 1 SCR 502 [Khela], stating: Third, the ability to challenge a decision on the basis that it is unreasonable does not necessarily change the standard of review thatapplies to other flaws in the decision or in the decision-making process.

For instance, the standard for determining whether the decisionmaker complied with the duty of procedural fairness will continue to be “correctness”. [54] BIM concluded that under either standard of review, the TBR Decision cannot withstand scrutiny because it was procedurallyunfair. The TBR failed to give BIM an opportunity to be heard in violation of the fundamental requirement to “hear the other side” (audialteram partem).

Had the TBR given BIM the opportunity to be heard, it would have reached the conclusion that procedural fairnessrequired that BIM be given adequate notice of the Notice of Assessment and that the time under PATA for BIM to file a complaint did notbegin to run until a Notice of Assessment was mailed to BIM. iii. GN [55] GN’s counsel acknowledged QIA’s apparent concession on the standard of review and advanced oral arguments based on thereasonableness standard and in particular relied on Edmonton (City) v Edmonton (City) Assessment Review Board, 2012 ABQB 399, 541AR 377 [Edmonton City Assessment]. However, Ms.

O’Neill’s written submissions addressed both. She submitted that the TBR Decisionwas both reasonable and correct. The foundation of her argument is that the substantive issue at play in this case turns on theinterpretation of subsection 40(3) of PATA which is the TBR’s home statute. Following Edmonton Capilano, she argues the standard ofreview is reasonableness. In response to my question during argument about why the TBR did not invite the applicants to a hearing, GNcounsel simply stated there is nothing in PATA that authorizes a hearing. iv. TBR [56] Counsel for TBR supported the arguments of the GN. 2.

Analysis [57] As stated at para 59 of Dunsmuir, the correctness standard still applies to true questions of jurisdiction. Administrative bodies must also be correct in their determinations of true questions of jurisdiction or vires. We mention true questions ofvires to distance ourselves from the extended

definitions adopted before CUPE. It is important here to take a robust view of jurisdiction.We neither wish nor intend to return to the jurisdiction/preliminary question doctrine that plagued the jurisprudence in this area for manyyears. “Jurisdiction” is intended in the narrow sense of whether or not the tribunal had the authority to make the inquiry. In other words,true jurisdiction questions arise where the tribunal must explicitly determine whether its statutory grant of power gives it the authority todecide a particular matter.

The tribunal must interpret the grant of authority correctly or its action will be found to be ultra vires or toconstitute a wrongful decline of jurisdiction: D. J. M. Brown and J. M. Evans, Judicial Review of Administrative Action in Canada(loose-leaf), at pp. 14-3 to 14-6. An example may be found in United Taxi Drivers’ Fellowship of Southern Alberta v. Calgary (City),[2004] 1 S.C.R. 485, 2004 SCC 19 .... [58] The determination of the standard of review is often a matter of how the Court frames the issue considered by the tribunal.

BIMcharacterizes the issue as being whether the TBR breached the rules of procedural fairness before it embarked on the

interpretation ofsubsection 40(3) of PATA. The GN characterizes the issue as the TBR’s statutory

interpretation of its home statute. [59] I am satisfied that BIM’s arguments raise a question of true jurisdiction because the TBR failed to contact the applicants and offer

them an opportunity to be heard before it decided that the applicants had not complied with subsection 40(3) of PATA . [ 60 ] In Edmonton City Assessment , the ratepayer had made multiple phone calls to the City about his assessment. His calls were not returned and he was told that he should mail his complaint. He mailed it on March 8 and it was postmarked March 9. The statutory deadline for filing a complaint was March 14. The City records indicated that it was received 11 days later on March 21, 2001.

In its decision, the Alberta Review Board (ARB) acknowledged that the ratepayers’ intent was to file the complaint form by the filing deadline. However, this was not achieved due to circumstances beyond his control, either with Canada Post or with the ARB. [ 61 ] The ARB recognized in its decision that there was a possible jurisdictional problem and that to deny the ratepayer a merit hearing would be to deny him natural justice. As a result, on April 5, 2011, a Notice of Hearing was sent to Mr.

Wood and the City to confirm a preliminary hearing date of May 11, 2011, for the purpose of determining whether the complaint was filed as required and whether a further hearing on the merits should be set. [ 62 ] After hearing the City and ratepayer, the ARB concluded that it had jurisdiction to extend the time limits in the legislation and deemed the complaint as valid so that it could proceed to a merit hearing. [ 63 ] While acknowledging that the statutory

interpretation question before the ARB was a question of law that met the true jurisdictional threshold, Hillier J. concluded at paras 38 and 39 that the standard of review was reasonableness. I am fully satisfied that the issue here deals with

interpretation of legislative time limits and whether the ARB has been granted authority to exercise a discretion. The

interpretation issue in this case derives from the language of the MGA and to some extent the

Interpretation Act - a statute with which it, no less than other tribunals, may need to be familiar. This is a question of law. It considers the language by which a statute sets deadlines and consequences for non-compliance which may arise in various contexts beyond the expertise of many tribunals. Arguably, it remains a “true” question of jurisdiction as affecting legislative deadlines. However, Rothstein J. signalled at para 43 of ATA that

interpretation of a statutory provision having a jurisdictional flavour does not automatically trigger a correctness standard of review. In all of the circumstances here, it is prudent to apply reasonableness as the appropriate standard of review. [Emphasis in original]. [ 64 ] ATA refers to Alberta (Information and Privacy Commissioner) v Alberta Teachers' Association , 2011 SCC 61 , [2011] 3 SCR 654 [ ATA ] .

In that case, Rothstein J. stated at para 34 that true jurisdictional questions would only arise in exceptional cases: The direction that the category of true questions of jurisdiction should be interpreted narrowly takes on particular importance when the tribunal is interpreting its home statute. In one sense, anything a tribunal does that involves the

interpretation of its home statute involves the determination of whether it has the authority or jurisdiction to do what is being challenged on judicial review. However, since Dunsmuir , this Court has departed from that definition of jurisdiction. Indeed, in view of recent jurisprudence, it may be that the time has come to reconsider whether, for purposes of judicial review, the category of true questions of jurisdiction exists and is necessary to identifying the appropriate standard of review.

However, in the absence of argument on the point in this case, it is sufficient in these reasons to say that, unless the situation is exceptional, and we have not seen such a situation since Dunsmuir , the

interpretation by the tribunal of “its own statute or statutes closely connected to its function, with which it will have particular familiarity” should be presumed to be a question of statutory

interpretation subject to deference on judicial review. [ 65 ] QIA adopted BIM’s arguments and raised a separate fairness issue. QIA submitted that Boardwalk is supportive of its argument that the Director and property assessor owed it a duty of fairness that required them to give QIA proper advance notice of the mailing of the assessments and the date their Complaint had to be filed. QIA also raised a jurisdictional argument on the failure of the GN to prove actual date the Notice of Assessment was mailed.

If the jurisdictional argument is successful then QIA did not file a late complaint and there was no requirement to extent the 45 day time limit that the TBR thought was being requested. [ 66 ] I am satisfied that the case at bar falls into the exceptional category because the TBR, unlike the ARB, may have lacked jurisdiction to interpret its home statute because it did not give the applicants an opportunity to be heard before making its decision. [ 67 ] Under all the circumstances I am satisfied that this case fits within the exceptional category described by Rothstein J. in ATA as further refined in the Khela and satisfies me that the standard of review is correctness.

B. Did the TBR breach the rules of procedural fairness by not giving BIM or QIA an opportunity to be heard before making the decision that the Complaints were out of time? 1. Arguments i. QIA [ 68 ] QIA argues that the Director, the Property Assessor and the TBR knew it had challenged the taxation of the Mary River Lands for the 2014 and 2015 taxation years on constitutional grounds. They further knew that the Assessment Notices for 2014 and 2015 were under appeal to the AAT. Under these circumstances the Director and Property Assessor had a duty to act fairly.

It was not unreasonable for QIA to expect to be informed of the actual date of the mailing of the Notice of Assessment either by way of a public notice or otherwise before it received it in the mail. It would also be reasonable to expect that the Director would exercise the courtesy of forwarding the Notice of Assessment electronically to QIA’s solicitors of record for the previous year’s assessments.

In support of this argument QIA invited the Court to consider paras159 to 163 of Boardwalk . [ 69 ] QIA argues that the TBR’s Decision that its Complaint was out of time was unreasonable because it only focused on s. 40(3) and failed to take into account the requirements of s. 28 of PATA . Section 27(3) (

d) specifies that the Notice of Assessment must state a date by which a complaint must be received, which must be at least 45 days after the date the notice is mailed. Section 28 (1) specifies that the Director shall within 14 days after the date on which the notices of assessment are mailed give public notice that the Notices have been mailed and the manner in which a complaint may be made. To complete the mailing process s. 28(2)(

a) specifies that the public notice must be given in the GTA in the locations and the manner the Director considers appropriate. QIA submits that the publication of the public notice in a newspaper is a manner or method of providing public notice whereas the word location or locations refers to the geographic place or site. Used conjunctively, QIA argues that the public notice that was published does not respect the spirit or intent of the legislation because it focused only on the manner of publication and not on the location.

The Director failed to consider other alternatives such as a local radio announcement or community bulletin boards one of which is located in the main lobby of the Iqluvut Building where QIA’s offices are located. The Director simply followed the practice that has been in place for the past 18 years. Although the property assessor is of the view that NNN is the most widely read newspaper in the GTA he has no idea whether this is in fact true. [ 70 ] QIA further submits that the public notice advertisement that appeared in the NNN was deficient on its face.

Tab 1 D of the GN compendium of documents contains the entire December 5, 2016, edition of the NNN, which includes the public notice advertisement. Section 28 (1) specifies that the public notice must be given within 14 days after the date when the Notices of Assessment are mailed to the assessed owners. What is missing from the advertisement is the date the Notices were mailed. The advertisement is also incorrect because it states that “a complaint must be in writing, within 45 days of the date of mailing of the notice”.

This is inconsistent with s. 40 (3) which states the complaint must be received within 45 days. The net result is that the public does not know from the advertisement what date constitutes the deadline. At the very bottom of the advertisement it states “Dated this 2nd day of December, 2016”. Since the public notice must occur within 14 days of mailing the Notices of Assessment it is possible they were mailed in the middle of November.

The net result is that the advertisement was not effective notice to the public. [ 71 ] Finally, QIA submits that the TBR incorrectly applied subsection 40(3) because it did not consider how s. 27(3) interacted with it. Both refer to the same step of making a complaint, but subsection 40(4) is the starting point. It states that the Secretary of the Board “shall confirm the date of mailing of the assessment notice with the Director or senior administrative officer”. Lannan did not carry out this step.

At Tab 4 of TBR’s Record, there is an email dated January 18, 2017, from Chapple telling Lannan that the last day for submitting complaints was January 16, 2017. He then asks the question “Did you receive any complaints?” At para 4 of the Lannan affidavit, Tab 4 of BIM’s compendium of documents, he deposes as follows: Pursuant to subsection 40(4) of the Property Assessment and Taxation Act , the secretary and Board are directed to confirm the date of the mailing of an assessment notice with the Director of Assessment.

The clear inference of the legislation is that the Board is entitled to rely on this confirmation. There is no duty of inquiry on the Board.

There is no confirmation in this paragraph that subsection 40(4) was complied with because the date the notices were mailed was not confirmed. Nevertheless, the TBR’s written decision that appears at Tab 5 of the TBR Record states that the Notice of Assessment was mailed on December 2, 2016. This is the first time that QIA finds out about the mailing date. However, this does not mean that this was the actual date the Notice was sent.

There is no postmark or post office receipt or other document to show on what information the TBR relied to determine that the QIA Complaint was out of time. [ 72 ] The only evidence provided about the actual mailing is found in the Towns affidavit located at Tab 1 of the GN compendium of documents. At para 13 he states that he personally placed the 2016 Assessment Notice for the Mary River Project in an envelope addressed to QIA at P.O. Box 1340 Iqaluit.

He states at para 14 that some of the assessment notices were then put through the Pitney Bowes postage meter in the assessment office to apply postage prior to being brought to the Iqaluit post office. The 2016 Assessment Notices that were not put through the postage meter were brought to the Iqaluit post office where postage was applied. It is not clear whether QIA’s 2016 Notice of Assessment was one of the ones that went through the postage meter or was taken to the post office.

At para 15, Towns deposes that the postage receipt attached as exhibit “C” is the evidence of payment of the postage for the Notices that were delivered to the post office. That receipt is dated November 28 and it says nothing about the 2016 Notice of Assessment being posted to QIA. The receipt is for five parcels with tracking numbers. Two went to Cape Dorset and two went to Arviat. It is unclear where the last one went but it could not have been the Notice because the weight was over six pounds.

This evidence does not help to determine the mailing date. [ 73 ] QIA attached as Tab C of its brief a Timeline to help the Court understand the relationship of the various dates. On Sunday, November 27, the Property Assessor put the QIA Assessment Notice in an envelope. On Monday, November 28, he delivered envelopes to the post office. Those include the one going to QIA and it is unclear if it is put through the postage meter or is done by the post office. The mailing date stated in the Notice of Assessment is Friday December 2. On December 5, the advertisement appears in the NNN.

On Tuesday, December 13, the Notice that was received by QIA but misplaced. This adds up to 11 days from December 2 and 16 days from November 28. Given the Christmas rush in Iqaluit, QIA submits that no one knows when the Assessment Notice was mailed.

Towns admitted in cross-examination that the assessment office picks a mailing date in advance to go into the notice that is an estimate of when he will be sent out by the post office. [ 74 ] The only evidence that is before the Court is the date the Assessment Notice was received by QIA, which is found at Tab 2-L of the affidavit of Wells in the QIA Application Record. That document records all mail received by QIA and it shows it was received on December 13, 2016. The Assessor’s office is across the hall from QIA offices.

Assuming the Notice of Assessment was mailed on November 28 – as the GN argues – then it took 16 days to reach QIA. Given the time of year and the relatively short 45 day timeframe for complaints the Assessor’s duty to mail cannot be satisfied by dropping 10,000 pieces of paper off at the Iqaluit post office without obtaining a receipt or confirmation of postmarking as required by subsection 40(4) . [ 75 ] If the Notice was mailed on November 28 and it took 16 days to reach QIA, then QIA had 29 days to file a complaint.

Subsection 27(3) states that the complaint must be received at least 45 days after the date of the mailing of the notice. QIA submits that the proper

interpretation of subsection 27(3)(

d) and 40(3) to satisfy the 45 days requirement is to interpret “mailing” to include the assessed owner actually receiving notice. Support for this

interpretation flows from paras 62 to 63 of Calgary (City) v Municipal Government Board , 2004 ABQB 85 , 33 Alta LR (4th) 96 [ Calgary City ] , as well as para 67 of Edmonton City Assessment , and para 30 of Edmonton Capilano . [ 76 ] This

interpretation leads to a harmonious reading between both sections in accordance with the modern approach to statutory

interpretation where the words of

an Act must be interpreted according to a textual, contextual, and purposive analysis to find a meaning that is harmonious with the Act as a whole as held at paras 10 to 12 in Canada Trustco Mortgage Co. v Canada 2005 SCC 54 [ Canada Trustco ] and para 30 of Edmonton Capilano . [ 77 ] The clear requirement in subsection 27(3)(

d) that the deadline must be “at least 45 days after” the Notice of Assessment is mailed indicates that the Legislature intended that an assessed owner will have 45 days to make a complaint. In this context, mailed must necessarily be interpreted as meaning “mailed (and received)”. To interpret this

section otherwise renders it impossible to harmonize this

section with subsection 40(3) . [ 78 ] As noted in paras 62 and 63 of Calgary City , a person is entitled to know of the right to complain and the deadline to act before the deadline for filing countdown begins. Since PATA requires sending notices of assessment by mail, notice cannot be said to have been properly given until received in the mail by the affected party. [ 79 ] As noted by Mahar J. at paras 44 to 45 of Agnico-Eagle v Government of Nunavut , 2014 NUCJ 30 , [2014] NJ No 29 (QL) [ Agnico- Eagle ] :

[44] The words of

an act or regulation must be taken in context, with the ordinary sense of the words used considered against thepresumed intentions of the law-maker. Context and presumptions about the intentions of legislators cannot, however, overcome clear andunambiguous language. Where the ordinary meaning of the statute can be clearly articulated it will always be given significant weight. [45] When the clear meaning of the words used leads to a literal

interpretation which renders the statute in question unwieldy orobviously unfair, courts should attempt a broader

interpretation that, while supported by the actual words used, leads to a conclusion thatis workable and in keeping with the presumed intentions of the law-maker. [80] Accordingly, “mailing” in subsection 40(3) must be interpreted as “mailing (and receiving)”. To hold otherwise would be to ignorethe fundamental legal principle expressed in the maxim lex non cogit ad impossibilia: the law does not compel a person to do that whichis impossible.

An assessed owner cannot possibly be expected to make a complaint under subsection 40(3) PATA until such time as theyhave received the Notice of Assessment or, at the very least, been given notice of the date by which a complaint must be made. [81] In Boardwalk the Court noted at paras 75 to 78 that: There is a parallel axiom of construction. Where

an Act can be construed more than one way, courts must reject any alternative which ismanifestly absurd, or extremely harsh, unjust, or capricious: Bennion, op. cit. supra, at 831-32 (§312); P.A. Côté,

Interpretation ofLegislation in Canada 448 ff. (3d ed. 2000); Poulin v. Serge Morency et Assoc. (SCC), [1999] 3 S.C.R. 351, 245 N.R.312, 330 (para. 31); Simms v. Reg. of Probates[1900] A.C. 323, 335 (P.C.(S.A.)). Older authorities are listed in 36 Hals. Laws 408 (3ded. 1961). The harsher the result of one

interpretation, the stronger the presumption against it: Côté, op. cit. supra, at 448-50. [Emphasisin original]. [82] Both the impossibility and absurdity canons can be used to interpret subsections 27(3)(

d) and 40(3). Given the harsh and unjustresult to QIA, the TBR’s

interpretation must be rejected as incorrect. [83] Subsections 27(3) and 40(3) of PATA refer to the same step, which is the making of a complaint. Interpreting “mailing” insubsection 40(3) to include the assessed owner receiving the Notice of Assessment leads to a harmonious reading between these twosections. This

interpretation also protects the rights of both parties. An assessed owner’s right to complain is protected within PATA’sconstraints of 45 days’ notice and a reasonable consideration of mailing. The respondent’s right to a timely complaint process isprotected from frivolous arguments by s. 114 of PATA that deems service by mail to have been made 14 days after the date of mailing. [84] Applying this

interpretation, QIA submits that the 45 day complaint period commenced December 13, 2016, the date it receivedthe Notice of Assessment. Since QIA’s Complaint was been received by the TBR on January 23, 2017, or 41 days later, it was within thetime period contemplated by PATA. [85] Finally, if there is any question about the

interpretation of subsection 40(3) in light of subsection 27 (3)(

d) it is clear from para 47of Canada Trustco, paras 73 to 74 of Calgary City, and para 47 of Agnico-Eagle that any uncertainty must be resolved in favour of QIA. ii. BIM [86] BIM advanced a two part argument that the TBR Decision should be quashed because it was procedurally unfair. First, the TBRdid not consider that BIM never received the Notice of Assessment because it was not mailed to BIM.

Second, the TBR failed to hold ahearing to give BIM an opportunity to be heard before deciding that the Complaint was invalid. [87] The first flaw in the TBR’s Decision is that it did not take into account that BIM was never given notice of the assessment, beforeit concluded that BIM’s Complaint was out of time. This was unreasonable and an error of law. [88] By the GN’s own admission, BIM never received the Notice of Assessment notwithstanding the GN’s knowledge of BIM’s

standing objection that the Mary River Lands were not subject to property tax.

The GN was well aware of BIM’s position on thetaxability of the Mary River Lands and was aware that BIM was liable to pay the property tax owing on the lands. [89] The GN also knew that BIM’s position on the taxation of the lands had not changed from the time it had received complaints fromprior years. [90] Notwithstanding this knowledge and the fact that the TBR had previously directed that the prior year’s notice be sent to BIM inaddition to QIA, in 2016 the GN did not send a copy of the Notice of Assessment to BIM nor did the GN advise BIM it had been sent. [91] The Assessor knew that one of the live issues in dispute was whether QIA or BIM was the “owner” for the purposes of PATA andthat QIA took the position that BIM, not QIA, was the owner. [92] Although the Assessor did place advertisements in NNN and Kivalliq News, advising that notices of assessment had been mailed,the GN ought to have known these advertisements were unlikely to come to BIM’s attention.

Having sent notices of assessment to BIM’sheadquarters in Ontario in prior years, the GN should have known that BIM would be unlikely to encounter paper copies of thesepublications. The Assessor admitted on cross-examination that he had no knowledge of how long PDFs of these publications remainedposted online. [93] BIM’s own internet searches in 2017 after it learned of the Notice of Assessment were unable to locate any trace of theadvertisements online. [94] The issue in this review is not the Assessor’s decision not to mail BIM the Notice of Assessment.

What is under review, however,is the TBR’s failure to turn its mind to the implications of this failure. [95] A well-established line of case law has held that where a decision-maker has actual knowledge of a party’s interest in an issue, itmust give that party notice.

Furthermore, a general public notice particularly in a location unlikely to come to an interested party’sattention is insufficient to discharge that obligation. [96] Wiswell v Metropolitan Corporation of Greater Winnipeg, (SCC), [1965] SCR 512, 51 WWR 513 [Wiswell],involved an application for a declaration that a zoning by law passed by the respondent was invalid. The municipality had given notice ofhearings in two newspapers but no notices were posted on the premises.

A homeowners association to which the appellant belonged andwhich was known by the respondent to be opposed to the application did not see the newspaper advertisements and had no notice orknowledge of the by law application. Cartwright J. on behalf majority of the Supreme Court of Canada held that the by law was invalidin part because the municipality, having actual knowledge of the homeowners association’s standing opposition to zoning changes, hadnot given adequate notice in the circumstances.

He stated at pages 520 to 521: I am of the opinion that the by-law was void in the particular circumstances of this case. It was not merely the failure to post the placardsbut the manifest ignoring of the fact known to it that the Association would oppose the by-law…. [97] Similarly, in this case, the “manifest ignoring of the fact known” to the GN that BIM would oppose the assessment renders theNotice of Assessment invalid via-a-vis BIM. [98] Wiswell was also followed in Conception Bay South (Town) et al. v Board of Commissioners of Public Utilities (Nfld.) et al., 95Mfld & PEIR 106, [Conception Bay].

In Conception Bay, the Court considered whether decisions of the firstrespondent, the Public Utilities Board for the Province of Newfoundland, respecting rates to be paid to the second respondent,Newfoundland Light & Power Co. Limited, had breached principles of natural justice. Cameron J. concluded at para 20: Some general trends can be observed.

It is clear that aside from statutory requirements the content and method of service of notice andwho is served is influenced by the type of hearing, the knowledge of the parties respecting who might be affected by or opposed to aproposed course of action and the nature of the interest affected.

[99] The principle that can be drawn from these cases is that where a decision-maker has actual knowledge of a party’s interest in adecision, procedural fairness requires that the decision-maker give the interested party notice. The GN had actual notice that BIMopposed the assessment of the Mary River Lands, and that the assessed value of the Lands was significant.

At a minimum, proceduralfairness requires it to advise BIM that the Notice of Assessment had been sent to QIA, if not actually to send BIM a duplicate copy. [100] The GN was well aware that there was a live issue in dispute as of December 2, 2016, concerning whether QIA or BIM was the“owner” for assessment purposes for 2014 and 2015 by virtue of the NLCA. Until there is a ruling confirming which party is the“owner” BIM is entitled to be mailed a copy of all notices of assessment.

A failure to require that assessment notices be sent to BIMwould reflect pre-judgment by the TBR. [101] It is apparent from a review of the Lannan affidavit filed by the TBR that it neither turned their minds to the Wiswell line of caselaw nor did they consider whether valid notice had been given to BIM to trigger the running of the timelines in PATA to commence acomplaint. The TBR made no inquiries regarding to whom the notice had been sent.

Rather, it simply decided that, having been told thenotice had been mailed to QIA on December 2, 2016, this foreclosed any complaint by BIM following the 45 day period after the noticewas mailed to QIA. [102] The TBR’s Decision was also procedurally unfair because it failed to give BIM any opportunity to make representations beforereaching a decision about its jurisdiction to hear the Complaint. As noted at ss. 7:1100, 7:1310 and 7:1330 in Donald J.M. Brown, Q.C.and the Honourable John M.

Evans, Judicial Review of Administrative Action in Canada (Thomson Reuters, Toronto) (loose-leaf), it is afundamental principle of procedural fairness that a party be given the opportunity to be heard and make representations before a decisionis made which affects its rights. [103] In justifying making the Decision without providing BIM with an opportunity to make submissions, the TBR argues at para 4 ofthe Lannan affidavit that the Secretary and the Board are entitled to rely on the confirmation specified in subsection 40(4) and have noduty to make an inquiry.

However, such reasoning is wholly inconsistent with established principles of statutory

interpretation. [104] Subsection 4 states that for the purposes of subsection 3 the “secretary of a board of revision shall confirm the date of mailing ofthe assessment notice with the Director or senior administrative officer, as the case may be. [105] Nowhere in PATA does it state that a hearing may be dispensed with where a party argues there has been a breach of proceduralfairness (i.e. no notice has been sent to a party entitled to notice or the notice is inadequate), and nothing short of an unequivocalstatement removing the parties’ procedural rights suffices to do so.

As explained at s. 7:1511 of Brown & Evans: [a]s a matter of statutory construction nothing short of unequivocal statutory language or necessary implication will suffice to persuadethe courts that legislation authorizes non-compliance with the “duty” of fairness”. [106] This is consistent with statements at para 54 of Wakil v Ontario Medical Review Committee, [1977] 1 ACWS 4, 1977 CarswellOnt782 [Wakil], and paras 1, 27 and 29 of Hundal v British Columbia (Superintendent of Motor Vehicles), (BC CA),[1985] 5 WWR 449, 1985 CarswellBC 190 [Hundal].

In Wakil the Court stated: the right of a citizen not to be affected in person, purse, or property without a hearing (unless deprived of it by statute) was enshrined inthe Magna Carta … The mere failure of a statute to recognize the right will not vitiate that right. [107] Even if the words “to the owner” were read into subsection 40(3), the identity of the owner is in dispute. Subsection 27(2) requiresthat the Notice of Assessment be mailed to each assessed owner when the assessed value of the property has changed.

The TBR couldnot decide if the notice had been mailed to the owner as required by PATA without deciding whether QIA or BIM was the owner and thatissue is still in litigation. By concluding that the requirements of subsection 40(3) had been met, the TBR, in essence, prejudged themerits of QIA’s position before it made this ruling. [108] For this reason, BIM submits that subsection 40(3) should be interpreted to mean within 45 days of the mailing of the notice “tothe party” rather than “to the owner”.

It states that no complaint shall be heard unless the Secretary of the TBR receives the complaintwithin 45 days after the date of mailing of the notice for the assessed property. The subsection is silent about which person the notice

was to be sent to and could include the owner or another party and these could be on different dates. Although subsection 27(1) only expressly requires that the Notice of Assessment be sent to the assessed owner recorded on the Assessment Roll, it clearly contemplates that the Notice of Assessment would be mailed to persons other than an owner. For example, s. 42 requires that a notice of hearing be sent to not only to the complainant but also to the assessed owner of the property if the owner is not the complainant. As a result there are two possible

interpretations of subsection 40(3) . It could mean within 45 days after the mailing of the Notice of Assessment to the owner or it could mean within 45 days after the mailing of the Notice of Assessment to someone who is a party. [ 109 ] The fact that PATA does not expressly refer to the right of interested persons to receive Notice of Assessments does not mean that it does not exist. The legislation is simply silent and this Court has to read the legislation in a manner consistent with the principles of statutory

interpretation. [ 110 ] BIM distinguished Edmonton City Assessment because in that case the ratepayer actually received the Notice of Assessment, but was late filing due to mail delays. [ 111 ] BIM also distinguished Pacific Rim Resort Properties Inc. v Port Alberni Assessor , Area No. 05 , 2005 BCCA 241 , 41 BCLR (4th) 59 [ Pacific Rim ] , because the legislative scheme was different and used a statutory date rather than a mailing date. iii. GN [ 112 ] The GN did not challenge BIM’s factual allegations in paras 88 to 93 above.

It also did not address the allegations from the applicants about the alleged breaches of procedural fairness. Its position was that the applicant’s submissions on procedural fairness are moot because PATA does not provide any flexibility or discretion for the TBR to hear a complaint that has been received outside of the required time frame. [ 113 ] The GN argues the Court must look at the evidence that was before the TBR rather than all the affidavits filed. The TBR had Complaints from QIA and BIM.

The TBR knew from the QIA Notice of Complaint that the Notice of Assessment purported to have been mailed on December 2 was only received by QIA on January 21. We now know that QIA received it on December 13. [ 114 ] The GN argues that all the evidence submitted by QIA is extraneous to the determination of the mailing date because it is stated on the Notice to be December 2, 2016, and because QIA actually received it in December 13, 2016. The fact that QIA lost the Notice is unfortunate but not a relevant consideration.

QIA missed that January 16 deadline and the TBR made a decision that the Complaint was out of time. The TBR knew that BIM did not receive the Notice and also knew there were issues between the parties. However, it decided that the Complaint was out of time. Both Decisions were reasonable and the Court should defer to the Decisions made by the TBR. [ 115 ] The GN argues that subsection 27(2) of PATA specifies that the Notice of Assessment is to be sent to the assessed owner recorded on the assessment role. Towns sent it to QIA because they were the assessed owner on the assessment role.

He defended the Decision in his cross-examination and explained that in many cases the landlord is the assessed owner but has numerous tenants. PATA did not contemplate that he would have to send it to the tenants. [ 116 ] The GN argued that Wiswell was not authority for the proposition that the actions of the municipality were void. The Court was composed of a five member panel and two found the actions were void while one member dissented and held it was voidable. The other two members refused to decide whether the decision was void or voidable.

The net result is that the case stands for the proposition that the actions are voidable. It is unclear whether the TBR addressed its mind to the void-voidable choice, but it made a decision and that decision was reasonable. [ 117 ] The TBR knew that a Notice of Assessment was sent to the assessed owner on the rolls. TBR also knew that QIA had not received the Notice of Assessment prior to the deadline for filing a complaint.

They knew the date of mailing from the email sent by the Director on January 20 and from the notice itself which stated that the mailing date was December 2. [ 118 ] The GN argues that subsection 40(3) states that “no complaint shall be heard”. The use of the mandatory word “shall” indicates

that the TBR has no discretion with respect to the time limits. The TBR can only exercise powers provided to it by statute and is absolutely prohibited from doing anything else. The Legislature made it clear that the TBR shall not hear complaints outside of that time period. When the TBR found out about the complaints they also determined that it did not have the discretion to extend the time. [ 119 ] The GN relies on Edmonton City Assessment . That case concerned the

interpretation of similar wording in the Alberta equivalent to PATA . The Notice of Assessment was received by the ratepayer and he mailed it before the deadline, but the Board did not receive it until after the deadline. Subsection 467(4) of the Act stated that: An Assessment Review Board must dismiss a complaint that was not made within the proper time. [ 120 ] The Board interpreted the legislation and determined that it could extend the time.

However, at para 61 Hillier J. held that the decision was unreasonable and that the Board appeared to have invoked principles of fairness and natural justice to extend the deadline. The GN submits that what the Court meant is that you cannot interpret a mandatory provision as allowing any discretion. [ 121 ] Further at para 76 Hillier J. noted that the applicant had argued that he had done all that he could be expected to do in order to file his appeal in a timely fashion.

He responded that if this argument were to be successful, it would potentially apply in all cases where the vagaries of the postal system result in delay in delivery of complaints. If the Court accepts the QIA argument that the date that should be used is when the Notice of Assessment is sent and received, then the TBR would face the problem that Hillier J. described. PATA set up an annual process. By using the date of receipt, you could have taxation years from when the Notice was sent. For example, if a ratepayer moved and changed address he could appear years later and say he just received the Notice.

The Legislature cannot have intended this

interpretation when it provided both direct and public notice of the mailing of the Notice of Assessments. [ 122 ] The GN also relied on Pacific Rim . In that case, the Notice of Appeal had to be filed with the Board on or before April 30. The ratepayer informed the Board prior to the deadline that it intended to appeal, but did not file until six days after the deadline. The Board ruled the appeal was invalid. The decision was overturned by the BC Supreme Court.

The Court of Appeal in its judgment overturned the Supreme Court that had concluded that the interests of fairness dictated that the filing deadline be extended. The Court of Appeal stated at para 14 that there was no provision in the Act that affords the Board discretion to extend the time for filing the appeal regardless of what the interests of fairness dictate. iv. TBR [ 123 ] The TBR submits that the procedural fairness issues raised by the applicants arise from the actions of the Director and by the GN. They do not arise from the actions of the TBR.

The TBR was neutral on the issues that occurred before it received the Complaint. These issues do not relate to the fairness of the process before the TBR and therefore are not the proper subject of a judicial review application to review the TBR’s Decision that the Complaints were out of time. [ 124 ] The TBR acknowledged that there was a potential procedural fairness issue about the timeliness of the complaints.

However, the TBR’s position is that it did not have the authority to consider this procedural fairness issue because the complaints were not received within the 45 days specified under s. 40(3) of PATA . The timeline in this

section is not one set by the TBR but rather by PATA and the Director, meaning that the TBR had no authority to extend it. 2. Analysis [ 125 ] The principle of audi alteram partem is one of the oldest principles of administrative law and comes from the common law. As Cȏté J. stated at para 156 of Boardwalk : The oldest rule of administrative law is to give a citizen notice of an alleged transgression or failing, before penalizing him or her or removing his or her office, property or liberty because of it. See de Smith, Woolf and Jowell, Judicial Review of Admin.

Action , paras. 6.010 ff. and 7.043 ff. (6th ed. 2007). That is at the core of the rules of natural justice, and the rules of procedural fairness. See Dunsmuir v. R., supra (para. 79). It is no answer that the citizen will have no defence, or that the facts are already irretrievable. The prisoner already convicted of murder is still asked if he can give any reason why sentence should not be passed. [ 126 ] He also noted at para 162 that the rules of fairness are applicable to taxation statutes:

Indeed, our Court has already stated that such a duty of fairness attaches to s. 295(4) of the Municipal Government Act: We would say, however, that while taxation statutes have not devolved from notions of fairness, we incline to the view that where anyreview of their application to a taxpayer is sternly curtailed, the elemental fairness of the taxpayer’s treatment must be regarded asjusticiable. This too militates against

summary determination of the jurisdictional question. It appears to us that Chief Justice Lamer’swidely respected dictum that “if the prohibitory words of the statute are clear, our inquiry is ended” is subject to the proviso ofprocedural fairness in matters of taxation. See generally, Cardinal v.

Kent Institution (SCC), [1985] 2 S.C.R. 643, 653(S.C.C.) where it is said that “[t]here is, as a general common law principle, a duty of procedural fairness lying on every public authoritymaking an administrative decision which is not of a legislative nature and which affects the rights, privileges or interests of an Individual.– Amoco Can. Petroleum Co. v. Min. of Municipal Affairs, supra, at para. 8 Administrative tribunals and the Court of Queen’s Bench have a duty to consider Court of Appeal decisions. See also WinnipegAssessor v.

Kisil Hotel, supra. [Emphasis in original]. [163] So clearly this assessor had a duty to be fair. [127] Any administrative tribunal should be well aware of these fundamental principles. The right to a hearing does not come from astatutory provision but is derived from the common law and depends on many factors. The right will be implied by a court whenever it isclear that a party has been treated unfairly and denied the opportunity to be heard when its rights are affected. It does not have to be inthe legislation although that is frequently the case.

Subsection 461(2) of the Municipal Government Act, RSA 2000, c M-26, that wasinterpreted in Edmonton City Assessment makes a hearing mandatory when the ARB receives a complaint. 461(2) On receiving a complaint, the designated officer referred to in s. 455 must set a date, time and location for a hearing before anassessment review board in accordance with the regulations. [128] The equivalent sections of PATA are ss. 41 and 42. They state: 41. A board of revision shall hear and consider each complaint that made to it in accordance with this Part. 42.

At least 21 days before the date of hearing of a board of revision, the secretary of the board shall mail a written notice of the date,time and place of the hearing to (

a) the complainant; (

b) the assessed owner of assessed property in respect of which the complaint is made, if he or she is not the complainant; (

c) the Director; and (

d) if the complaint is made with respect to assessed property in a municipal taxation area, the senior administrative officer. [129] The ARB and TBR were both faced with same issue of possible invalid complaints because of the failure to comply with statutorytime limits. As noted above the ARB was aware of the ratepayers’ attempts to communicate with the City and of his intent to file acomplaint. Although the ARB recognized that the complaint might have been invalid because of missing the statutory deadlines it wasalso aware of the rules of procedural fairness.

Instead of making a decision in the absence of the ratepayer, as the TBR did, the ARBdecided to hold a hearing on the issue of whether the complaint was valid. After hearing from both parties the ARB decided that it hadthe jurisdiction to extend the filing deadlines. Hillier J. concluded that the ARB decision did not meet the reasonableness standard andquashed the decision.

There was no issue before him on the denial of procedural fairness that is before me on this application and for thatreason Edmonton City Assessment is distinguishable. [130] The TBR failed to take the same preliminary step of giving the applicants an opportunity to be heard before it made the substantivedecision on the

interpretation of subsection 40(3) of PATA. The TBR was well aware or should have been well aware of the history of

this file. The 2014 assessment was initially issued to BIM. However, after a complaint by BIM a new 2014 assessment was issued substituting QIA as the new assessed owner. The TBR directed that the Mary River Lands be re-assessed and QIA filed an appeal of the new 2014 assessment on the grounds that the Mary River Lands are exempt from taxation under

Article 22 of the NLCA. A new Notice of Assessment was issued to QIA on August 24, 2015, showing QIA as the assessed owner. [ 131 ] In November 2015, a Notice of Assessment was issued to QIA similar to the 2014 assessment. Following complaints filed by BIM and QIA the 2015 Notice of Assessment was corrected and re-issued on October 7, 2016. The TBR ordered a similar reassessment as the year before and ordered the Director to mail the Notices of Assessment to both QIA and BIM. [ 132 ] Despite the TBR’s direction on the 2015 Notices, the Director decided that he would only send the 2016 Notice to QIA.

His explanation for doing so given the background is disingenuous. Unfortunately, a QIA employee did not forward the Notice to upper management and they did not find out about it until the 45 days specified in subsection 40(3) had expired. If the Director had sent the Notice to BIM there is a high probability it would have come to QIA’s attention within the 45 day period because QIA and BIM would have shared the information as occurred on January 23 and 24, 2017.

Taking this simple step would have avoided this litigation. [ 133 ] I agree and accept BIM’s argument that the TBR neither turned its mind to the Wiswell line of case law nor did it consider whether valid notice had been given to BIM to trigger the running of the timelines in PATA to commence a complaint. The TBR made no inquiries regarding to whom the notice had been sent.

Rather, it simply decided that, having been told the notice had been mailed to QIA on December 2, 2016, this foreclosed any complaint by BIM following the 45 day period after the notice was mailed to QIA. [ 134 ] On January 18, 2017, Chapple emailed Lannan. He stated, “the last day for submitting complaints was January 16, 2017.” He then asks the question “Did you receive any complaints?” This exchange demonstrates that some complaints were anticipated.

Given the history between QIA and the Board, it would only have taken a phone call or an email prior to the deadline to find out if something was wrong with QIA’s assessment. Instead the TBR did nothing until the deadline had passed. The flurry of activity after QIA found out that the Notice of Assessment had been sent out confirmed what Chapple and Lannan had to have suspected.

There had been some problem in the mailing of the Notice of Assessment that resulted in QIA not filing a complaint. [ 135 ] In Edmonton City Assessment , the ARB knew the ratepayer had received the Notice of Assessment and intended to file a complaint. However, it was aware of the rules of procedural fairness and knew it should give him an opportunity to be heard before moving on to a hearing on the merits. In this case the TBR should have known BIM had not received the Notice of Assessment because it was never mailed to them.

Yet the TBR failed to inquire if the Notice of Assessment had been mailed to BIM after they received the late Complaint. I am satisfied that BIM falls within Wiswell and that the TBR breached the rules of procedural fairness by not setting up a hearing and giving BIM an opportunity to be heard before deciding the Complaint was out of time. [ 136 ] QIA is in a different position because it did receive the Notice of Assessment on December 13, 2016. As a result Wiswell is not applicable . It failed to file the Complaint because of a failure of its internal mail processing.

Nevertheless, it relies on Boardwalk and advances a breach of procedural fairness argument that is based on breaches by the Director and property assessor before the Complaint reached the TBR. It also advanced a solid argument that the TBR made a jurisdictional error in deciding that its Complaint was out of time. Once again the TBR failed to address its mind to these types of arguments and most importantly did not give QIA an opportunity to be heard.

If it had done so it might have accepted the QIA argument and ruled that the Complaint was validly filed. [ 137 ] The TBR argues that it is not responsible for the actions of the Director and had no duty of fairness to the applicants. It is apparent from Cȏté J.’s comments at para 159 of Boardwalk that technical attempts to defeat a legitimate fairness issue will not be well received. This argument ignores the history of the relationship between QIA and the Director.

The TBR was well aware of that history having given specific instructions to the Director the year before to send the Notices of Assessments to both applicants. The TBR knew there was a problem when the Complaints were not filed within the 45 day time limit. By failing to contact the applicants and offer some type of hearing, the TBR breached the rules of procedural fairness. C. If the TBR breached the rules of procedural fairness, was the TBR Decision that the Complaints were out of time correct?

[138] Since I have held that the TBR breached the rules of procedural fairness with respect to both applicants, I am required to carry outmy own analysis of the TBR Decisions and determine if they were correct. As stated at para 50 of Dunsmuir: As important as it is that courts have a proper understanding of reasonableness review as a deferential standard, it is also withoutquestion that the standard of correctness must be maintained in respect of jurisdictional and some other questions of law. This promotesjust decisions and avoids inconsistent and unauthorized application of law.

When applying the correctness standard, a reviewing courtwill not show deference to the decision maker’s reasoning process; it will rather undertake its own analysis of the question. The analysiswill bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own viewand provide the correct answer.

From the outset, the court must ask whether the tribunal’s decision was correct. [139] The GN submitted that the applicant’s submissions on procedural fairness were moot because the statutory scheme set out in PATAdoes not provide any flexibility or discretion for the TBR to hear a complaint that is out of time. In support of this argument, the GNrelied on Quebec (Communauté urbaine) v Corp. Notre-Dame de Bon-Secours, (SCC), [1994] 3 SCR 3, [1994] SCJ No78 (QL). In that case, and many others, the Supreme Court adopted and applied the basic principle of statutory

interpretation from p. 87of Drieger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1993). . . . the words of

an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the schemeof the Act, the object of the Act, and the intention of Parliament. [140] Applying these principles and taking into account subsection 28(2) of the

Interpretation Act, RSNWT (Nu) 1988, C I-8 and s. 28of PATA on publication of public notice, the GN argues that the system set out in s. 40 for the filing of complaints is not structured withflexibility or discretion. As a result, the TBR has no authority to extend the 45 day timeline after the mailing of the Notice ofAssessment. [141] I am satisfied that these sections of PATA are not as unambiguous as argued by the GN. Neither applicant argues that the TBRshould have extended the timelines as the ARB did in Edmonton City Assessment.

However, they do argue that the TBR failed toappreciate the preliminary steps it must take to establish when the 45 day period started to run. It simply assumed that the mailing dateas stated on the Notice of Assessment was correct and then determined that the Complaints were out of time. [142] BIM argues that there is some ambiguity in the wording of subsection 40(3) because it only refers to the mailing of the Notice ofAssessment for the assessed property.

The subsection is silent about who the Notice of Assessment was to be sent to and could includethe owner or another party and these could be on different dates. It could mean the owner or another party such as a tenant. Althoughsubsection 27(1) only expressly requires that the Notice of Assessment be sent to the assessed owner recorded on the Assessment Roll, itclearly contemplates that the Notice of Assessment would be mailed to persons other than an owner.

For example, s. 42 requires that anotice of hearing be sent to not only to the complainant but also to the assessed owner of the property if the owner is not the complainant.As a result, there are two possible

interpretations of subsection 40(3). It could mean within 45 days after the mailing of the Notice ofAssessment to the owner or it could mean within 45 days after the mailing of the of the Notice of Assessment to someone who is a party. [143] BIM argues that even if the words “to the owner” were read into subsection 40(3) the identity of the owner is in dispute.Subsection 27(2) requires that the Notice of Assessment be mailed to each assessed owner when the assessed value of the property haschanged.

QIA has asserted in the previous years that BIM is the “owner” of the Mary River Lands for assessment purposes only by virtueof the provisions of the NLCA. The GN was aware that this was a live issue as of December 2, 2016. Until there is a ruling confirmingwho is the “owner” for the purposes of PATA, BIM is entitled to be mailed a copy of the Notice of Assessment. The TBR could notdecide if the notice had been mailed to the owner as required by PATA without deciding whether QIA or BIM was the owner and thatissue is still in litigation.

By concluding that the requirements of subsection 40(3) had been met, the TBR, in essence, prejudged themerits of QIA’s position before it made this ruling. [144] For this reason, BIM submits that subsection 40(3) should be interpreted to mean within 45 days of the mailing of the notice “tothe party” rather than “to the owner”. The fact that PATA does not expressly refer to the right of interested persons to receive Notice ofAssessments does not mean that it does not exist. The legislation is simply silent and this Court has to fill in the legislation followingprinciples of statutory

interpretation.

[ 145 ] The GN did not address this argument and simply stated that there was no ambiguity in subsection 40(3) and went to address the

interpretation advanced by QIA. [ 146 ] I am satisfied that there is an ambiguity in subsection 40(3) and agree with the

interpretation advanced by BIM. This is consistent with the principles of statutory

interpretation set out in Canada Trustco , Calgary City and Agnico-Eagle that the uncertainty should be resolved in favour of BIM. [ 147 ] The TBR should have addressed its mind to which parties the Director should have mailed the Notice of Assessment. If it had done so, it would have remembered that on the 2015 Notice of Assessment it ordered that both QIA and BIM be sent the Notice of Assessment and that BIM should have been sent the 2016 Notice of Assessment. [ 148 ] As a result, I conclude that the TBR’s Decision about the late filing of the BIM Complaint was incorrect.

Since BIM was never mailed the Notice of Assessment the time has not started to run. [ 149 ] As set out above, QIA advanced a three part argument that the TBR failed to establish the actual date the Notice of Assessment was mailed. [ 150 ] First, the public notice was defective. [ 151 ] Second, the TBR failed to confirm the actual date the Notice of Assessment was mailed as required by subsection 40(4) . Instead the TBR decided that the mailing date was December 2, 2016 because that was the date that the Director picked and inserted into the Notice of Assessment.

There was no request from the TBR for evidence to support the December 2 date. As a result, the only solid evidence that is now before the Court is that QIA received the Notice of Assessment on December 13, 2016. [ 152 ] Third, relying on Calgary City and para 67 of Edmonton City Assessment , QIA argues that the words “after mailing of the Notice of Assessment” should be interpreted as “mailing and receiving.” As stated at para 61 of Calgary City , the purpose of the mandatory language used in subsection 27(3) (

d) is to provide an assessed owner a period of time after receiving the Notice of Assessment to consider making a complaint. The period of time should commence at the time the notice is received by the assessed owner. To interpret otherwise would give rise to the inequity of the right to complain being lost by the assessed owner’s ignorance of the assessment. As stated at paras 64 and 68 to 71 of Calgary City , interpreting a

section like subsection 40(3) as excluding receipt would mean that a ratepayer has less than 45 days to respond to a Notice of Assessment. This would be contrary to the legislative intent. [ 153 ] The GN response to these arguments was that there was no ambiguity. Additionally that it would impose a difficult administrative burden on the Director and TBR that Hillier J. described at para 76 of Edmonton City Assessment . PATA set up an annual process. By using the date of receipt you could have taxation years from when the Notice was sent.

For example, if a ratepayer moved and changed address he could appear years later and say he just received the Notice. The Legislature cannot have intended this

interpretation when it provided both direct and public notice of the mai

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