Docket: CACV 2366 The City of Saskatoon Prospective Appellant - v. -, 2013 SKCA 62

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 62 Date: 2013-06-11 Between: Docket: CACV 2366 The City of Saskatoon Prospective Appellant - and - North Ridge Development Corporation Prospective Respondent Before: Jackson J.A. (in Chambers) Counsel: Kim M.K. Bodnarchuk for the prospective appellant Joel A. Hesje, Q.C. for the prospective respondent Application: From: Saskatchewan Municipal Board, Assessment Appeals Committee decision dated December 18, 2012 Heard: March 25, 2013

Disposition: Application for Leave Dismissed Written Reasons: June 11, 2013 By: The Honourable Madam Justice Jackson Jackson J.A. I. Introduction [ 1 ] The City of Saskatoon applies for leave to appeal a decision of the Assessment Appeals Committee of the Saskatchewan Municipal Board dated December 18, 2012 (see: [2012] S.M.B.A.A.C.D. No. 41 (QL) (Appeal No.: 2011-0089) to the Court of Appeal pursuant to s. 33.1 of The Municipal Board Act , S.S. 1988-89, c. M-23.2.

Over the objections of the City, the Committee decided that it has jurisdiction to hear an appeal by North Ridge Development Corporation from a decision of the Board of Revision. I have decided that leave should not be granted. II.

Hearing before the Board of Revision [ 2 ] Initially, North Ridge appealed a decision of the Assessor to the Board of Revision on the basis of what the City calls a “calculation error.” Shortly before the appeal could be heard in relation to that aspect of North Ridge’s appeal, North Ridge requested an amendment to its notice of appeal to add a new ground of appeal concerning a question of “valuation.” [ 3 ] In relation to the notice of appeal as prepared originally, the City agreed with North Ridge that a calculation error had been made and recommended that the Board change the assessment in North Ridge’s favour.

However, the City of Saskatoon opposed the amendment to add a new ground of appeal for three reasons: (

i) the application to amend was out of time; (ii) the amendment would fundamentally change the nature of the appeal at a late stage in the proceeding; and (iii) the new ground of appeal would require some significant time to properly prepare. [ 4 ] With respect to North Ridge’s original notice of appeal, the Board accepted the City’s recommendation to correct the valuation error.

The Board also agreed with the City that North Ridge’s requested amendment should not be granted: It is the policy of the Board to accept late amendments to the grounds only when the need to amend the grounds could not have been foreseen prior to the deadlines for document submission prescribed in The Cities Act . It is the responsibility of all property owners to be aware of legislation pertaining to their property, and to diligently adhere to The Cities Act and other such legislation.

That a person may be uninformed of legislation, does not excuse one from the rule of law. (see para. 4 of the Committee’s decision) Furthermore, as North Ridge had been advised in writing of the deadlines for submissions to the Board, the Board believed that North Ridge had been treated fairly (para. 4 of the Committee’s decision). [ 5 ] With that, North Ridge appealed the Board’s decision to the Assessment Appeals Committee on the sole ground of appeal that the Board erred by failing to allow the amendment.

North Ridge asked the Committee “in the interests of fairness … [to] allow the amendment to the appeal, as the Board of Revision should have done” (notice of appeal to the Saskatchewan Municipal Board dated July 28, 2011). III. Decision of the Assessment Appeals Committee [ 6 ] The Committee stated that the issue before it was “whether the Board complied with its duty of fairness as required under subsection 203(4) of the Act when considering the request for an amendment and not whether the request for the amendment should have been approved by the Board” (para. 32 of the Committee’s decision).

The Committee held that the Board was required to determine “the extent of prejudice to the assessor” (para. 34) and whether the City of Saskatoon “can be compensated for [its] costs,” which “typically involves determining whether or not an adjournment can be granted to address the prejudice to the assessor” (para. 37). The Committee further stated that such matters must be considered “on a case by case basis with reasons for a decision reflected in the record of the board” (para. 38). [ 7 ] It is in relation to this decision of the Committee that the City of Saskatoon applies for leave. IV.

Application for Leave to Appeal to this Court [ 8 ] The starting point for the matter is s. 33.1 of The Municipal Board Act , which grants a restricted right of appeal to this Court on a question of law or on a question concerning the jurisdiction of the Saskatchewan Municipal Board.

Section 33.1(

b) provides that this right is exercisable only with leave of a judge of this Court. [ 9 ] The City of Saskatoon proposes that leave be granted in relation to the following questions:

(

A) Did the Committee err in assuming jurisdiction to hear the appeal without first determining the issue which had been placed before it in the Prospective Respondent’s Notice of Appeal, being whether the Board of Revision had erred by refusing to allow an amendment to its Notice of Appeal? (

B) Did the Committee err in jurisdiction and law in determining it had jurisdiction to hear the appeal proper as a hearing de novo ? (

C) Did the Committee err in law as to the test to be used by the Board of Revision in making the discretionary decision of whether to allow an amendment to a Notice of Appeal? [ 10 ] As will be seen from the first and second questions, the City has interpreted the Committee’s decision as having decided that an amendment should be granted. The third question queries the test applied by the Committee. [ 11 ] In my respectful view, I do not construe the Committee’s decision as having decided that an amendment should be granted, or what it would do if it were to grant the amendment.

In reaching this conclusion, I have noted the following passages from the Committee’s decision: [2] This decision relates solely to whether the Saskatchewan Municipal Board, Assessment Appeals Committee (the Committee) has jurisdiction to amend the appellant's notice of appeal to the Board of Revision (the Board) to include a further ground of appeal .

ISSUE: [3] Does the Committee have jurisdiction to hear an appeal on the grounds that the Board erred in its decision, whereby the Board refused to grant leave to the appellant to amend his notice of appeal for the year 2011 ? . . . [8] The Committee held a hearing on the preliminary question of whether it has jurisdiction to hear and determine this appeal. … [42] The Committee notes that the submissions of the respondent mainly dealt with whether or not the amendment should be allowed and what the Board should or likely did consider when it decided to refuse the request to amend the notice of appeal.

The Committee finds that this information provided by the respondent is not relevant in this case given that the Board just referred to its policy as the reason for the refusal of the request rather than applying the principle of fairness in considering whether or not the request should be granted.

In the Committee's view given the Board's decision, it does not have before it the question of whether or not the amendment should have been allowed in the given circumstances by the Board and therefore has no comment on that issue . [43] The Committee finds that the Board erred in its decision refusing to allow the requested amendment to the notice of appeal because of their policy on filing late amendments and without first determining the extent of prejudice to the assessor and then considering whether or not an adjournment could address any potential prejudice. [44] For the foregoing reasons, the Committee finds that it has jurisdiction to hear the appeal for the subject property .

Once the time for appealing this decision has passed (30 days) and if there is no appeal taken, the Committee will set down a time and place for the appeal hearing. [emphasis added] [ 12 ] The Committee appears to have been careful to limit what it decided to the question of whether it had “jurisdiction” to take on the issue of whether the Board should have refused the amendment for the reasons that it did.

In my view, then, the Committee has yet to decide whether the amendment should have been allowed or indeed the consequences of its decision that the Board erred in refusing to grant the amendment for the reasons that it did. [ 13 ] Given this

interpretation of the Committee’s decision, I have decided that leave should not be granted for these reasons. [ 14 ] First, this is an interlocutory decision. The proposed appellant asks this Court to offer an opinion on the

interpretation of The Cities Act, S.S. 2002, c. C-11.1 divorced from the question of whether the amendment to the notice of appeal should be granted—or indeed what should happen if the amendment is granted. Given this, the appropriate test is clearly that established by Rothmans, Benson & Hedges Inc. v. Saskatchewan , 2002 SKCA 119 , 227 Sask. R. 121. The appeal, as cast at this point, is neither of sufficient merit to warrant the attention of the Court or of sufficient importance to the proceedings, to the field of practice, to the state of the law, or to the administration of justice generally to warrant determination by the Court.

[ 15 ] Second, I do not have a “serious doubt” about the correctness of the decision at least at this stage of the proceeding (see: Schalk v. Regina (City) , 2000 SKCA 140 at para. 8 ). The Legislature granted the Committee a broad authority to hear appeals from the Board of Revision. According to clauses 12(1) (

a) and 16(1) (

a) of The Municipal Board Act , a committee of the board shall “hear and determine … assessment or classification appeals pursuant to The Cities Act .” Under s. 216 of The Cities Act , any party to an appeal before a board of revision has a right of appeal to the appeal board defined as the Saskatchewan Municipal Board: (

i) respecting a decision of a board of revision; and (ii) against the omission, neglect or refusal of a board of revision to hear or decide an appeal. Under s. 226 of The Cities Act, the appeal board may “confirm” or “modify” the decision of the board of revision. Section 224(1) of The Cities Act provides that the appeal board may exercise the powers that are vested in it pursuant to The Municipal Board Act .

Section 20(1) of that latter Act , states that the “board has authority to hear and determine any question of fact or law as to matters within its jurisdiction.” Appeals under s. 216 of The Cities Act are within its jurisdiction. [ 16 ] It may have been preferable for the Committee to have analysed its authority vis-à-vis that of the Board of Revision in light of The Cities Act and The Municipal Board Act .

Nonetheless, at this stage of the proceedings and for the purposes of granting leave, I do not have a serious doubt about the authority of the Committee to embark on a consideration of whether the Board should have allowed the amendment to Northland’s appeal. V. Conclusion [ 17 ] The application for leave is dismissed with costs fixed in favour of Northridge at $500. DATED this 11 th day of June, A.D. 2013. __ “Jackson J.A.” _____________ Jackson J.A.