Saskatoon (City) v, 2019 SKCA 105

Court of Appeal for Saskatchewan Docket: CACV3384 Citation: Saskatoon (City) v 101071855 Saskatchewan Ltd., 2019 SKCA105Date: 2019-10-17Between:The City of SaskatoonApplicant/Proposed Appellant (Appellant)And101071855 Saskatchewan Ltd. and Saskatchewan Assessment Management AgencyRespondent/Proposed Respondent (Respondent)Before: Leurer, J.A. (in Chambers)Disposition: Application dismissedWritten reasons by: The Honourable Mr.

Justice LeurerOn Application From: Saskatchewan Municipal Board Assessment Appeals Committee, AAC 2017-0193 and 2018-0162,ReginaApplication Heard: July 24, 2019Counsel: Alan Rankine for the Appellant Andrea Rohrke for the Respondent Leurer J.A. I.

Introduction [1] The City of Saskatoon [City] seeks leave to appeal the decision of the Saskatchewan Municipal Board Assessment AppealsCommittee [Committee] relating to the 2017 and 2018 property tax assessments of an apartment tower [Building] owned by 101071855Saskatchewan Ltd. [Owner]. [2] The City’s Board of Revision [Board] found that the assessor had erred in the assessments and directed the assessor that theybe redone: 101071855 Saskatchewan Ltd. v Saskatoon (City) (11 October 2017) Appeal No 533-2017 (City of Saskatoon Board ofRevision) [2017 Board Decision] and 101071855 Saskatchewan Ltd. v Saskatoon (City) (18 June 2018) Appeal No 233-2018 (City ofSaskatoon Board of Revision) [2018 Board Decision]. [3] The City appealed these two decisions to the Committee.

The Committee issued a single decision dismissing the City’sappeals: Saskatoon (City) v 101070855 Saskatchewan Ltd. (11 December 2018) Regina, AAC 2017-0193 and AAC 2018-0162, [Committee Decision]. [4] The City now seeks leave to appeal the Committee Decision pursuant to s. 33.1 of The Municipal Board Act, SS 1988-89, cM-23.2, which allows appeals to this Court “on a question of law or on a question concerning the jurisdiction”. The City alleges numerouserrors on the part of the Committee. [5] For the reasons that follow, I dismiss the City’s application. II. Background A.

General Background [6] The City assessed the Buildings using a model built on an income approach to valuation.

The model analyzed the “anticipatedfuture benefits or income from the property and convert[ed] this income into an estimate of present value” (Committee Decision at para 2).Part of the model involved estimating the potential gross rent for the Building. [7] The issue before the Board and the Committee was the Owner’s contention that the market rents used by the assessor tocalculate the potential gross rent did not accurately reflect the actual characteristics of the Building and therefore there was an error in theassessment model.

In particular, the Owner maintained that the suites in the Building are differently configured and significantly smallerthan typical rental units in the marketplace. The Owner argued that these differences meant that the Building’s rental rates were lowerthan the model suggested and therefore the model produced inequity. B. 2017 Assessment and Appeal to Board of Revision [8] The Owner appealed the 2017 assessment to the Board pursuant to s. 197 of The Cities Act, SS 2002, c C-11.1.

The Owner’snotice of appeal to the Board stated the following grounds: Ground 1: The assessor’s model does not reflect the income associated with a multi-family high-rise apartment in neighbourhood15002.09. Facts:

a) The 2014 income information submitted to the City is significantly lower than what the assessor’s model is predicting resulting in an over assessment of approximately $4,000,000.

b) The assessor’s model neighbourhood includes a number of non-comparable that achieve a significantly higher income in comparison to the subject.

c) The assessor’s model properties are not comparable in year built and quality resulting in higher rents being applied to the subject. Ground 2: Equity with comparable properties has not been maintained as contemplated by The Cities Act . Facts:

a) The subject property is assessed 20% over market value in comparison to similar properties that are assessed at market or slightly lower than market. [ 9 ] The Secretary of the Board determined that the Owner’s notice of appeal was deficient and, in accordance with s. 199(6) (

b) of The Cities Act , invited the Owner to address the following deficiencies: Include additional specific facts to support the following grounds of appeal: 1

b) Which are the non-comparable properties and how are they non-comparable? 2

a) Which similar properties and how are they similar? [ 10 ] The Owner replied to the Board’s Secretary by letter dated May 30, 2017. The letter identified the properties used by the assessor said to be non-comparable and then continued: The Act states that assessments must be prepared and meet the valuation standard. This standard can only be met if the assessment reflects typical market condition for similar properties. These types of apartments are not comparable in the following terms: 1.

The physical characteristics of the property: - Property use; - Building size/area; - Construction style/materials; - Condition of improvements; - Building configuration; - Site size, and; - Location. … 4.

Similar properties will also have similar classes that are established based upon physical characteristics such as: - Function/nature; - Location; - Size; - Size of site; - Floor space; - Density of development (land/building ratio); - Age/condition; and - Facilities/amenities. [ 11 ] On the day of the hearing before the Board, the Owner requested leave to amend its notice of appeal to include an additional sub-ground under the first ground of its notice of appeal to specify that “[t]he assessor’s model has failed to recognize the impact of the atypical size of the subject properties [ sic ] suites in relation to the rents achieved”. [ 12 ] The City objected to the proposed amendment.

The Board upheld the City’s objection and refused to allow the Owner’s proposed amendment to the notice of appeal.

Nonetheless, the Board indicated that the Owner could lead evidence relating to suite size as the issue fell within the scope of the existing notice of appeal as supplemented by the Owner’s May 30, 2017 letter: The Panel caucused to discuss and on reconvening, the Panel Chair pointed out that page 2 of Exhibit A2 [i.e., the Owner’s May 30, 2017 letter] states that similar properties will also have similar classes that are established based upon physical characteristics and that the Appellant included the size in item 4 as an issue.

The Panel Chair advised the parties that [the Owner] could speak to either the size of the

building or the size of the suites. He advised [the City] that Exhibit A2 was received on May 30 which would have provided more than ample time for the Assessor’s [ sic ] to disagree with A2. [ 13 ] After hearing evidence and argument from the parties, the Board ruled that “the Assessor’s model was in error as it did not result in the achievement of equity as required by [ The Cities Act ]”. The 2017 Board Decision concluded as follows: The Panel directs the Assessor to ensure that the model reflects the influence of size for this property.

The Assessor shall calculate the Estimated Potential Gross Rent by using the actual rents of the subject property. C. 2018 Assessment and Appeal to Board of Revision [ 14 ] Before the City’s appeal from the 2017 Board Decision could be heard by the Committee, the City conducted its 2018 assessment, adopting the same approach as it took in 2017. The Owner appealed the 2018 assessment to the Board, although it restated the grounds of appeal slightly, presumably to avoid a renewed objection by the City to the scope of the notice of appeal.

The Owner and the City agreed that the evidence and argument from the 2017 appeal should be carried forward to the 2018 appeal. [ 15 ] The 2018 Board Decision concluded that, “as there is no new evidence presented by either of the parties, the Board has no basis to arrive at a decision that is different from what was rendered in [the 2017 Board Decision ]”. D. Appeals to the Committee [ 16 ] The City appealed both the 2017 Board Decision and the 2018 Board Decision to the Committee.

The notices of appeal to the Committee alleged the same errors by the Board in its two decisions, as follows: Issue Supporting Facts The Board erred in allowing evidence and argument outside their jurisdiction. The Board did no [ sic ] properly consider the Notice of Appeal and the Tax Agent’s request to Amend. The Board erred by concluding the PGR [potential gross rent] could be based on contract rents. Application Individual contract rents in this circumstance does no [ sic ] align the Equity or the Market Valuation Standard. E.

Committee Decision [ 17 ] The Committee Decision introduced its substantive discussion by summarizing its conclusions in respect to the City’s two grounds of appeal, stating: [7] We find the Board did not make a mistake by allowing argument with respect to the size of the suites or the size of the building based on the evidence before it.

We also find the Board did not make a mistake when it found the Assessor’s model was in error and did not achieve equity. [ 18 ] The Committee then stated that it had “concerns that the remittal order by the Board to the City does not comply with mass appraisal principles” (at para 8). Because of these concerns, the Committee gave directions on the “technique [to] be applied in stratifying the property’s own rents to meet mass appraisal principles” (at para 9). These directions are found at paragraphs 8 to 13 of the Committee Decision .

After providing these directions, the Committee entered a more detailed discussion of the City’s two grounds of appeal. [ 19 ] In connection with the first ground of appeal, the Committee stated its understanding that the Owner’s May 30, 2017 “perfection letter was accepted by the Board” (at para 21).

Then, after noting the Owner’s failed attempt to amend its notice of appeal, the Committee continued its reasoning as follows: [24] Having found [the Owner] could lead evidence on the size of the suites, the Board found the actual suite size of the subject property was dramatically different from the typical suite used in the model. There was evidence to support this proposition. The Board reasoned suite size impacts the value and, therefore, the rents which can be achieved by the subject property. The Assessor conceded the model does not collect or require the suite square footage data.

The Board found the Assessor’s model did not reflect the actual rents the subject property was able to achieve because the model did not account for smaller suite size and it did not achieve equity as required by the Act . [25] This Committee agrees with the Board. As an appellate tribunal we approach findings of fact with deference. There was evidence available to the Board to conclude as they did that the suites contained in the subject property were smaller than the comparables used.

The conclusion that the Assessor’s model was in error and did not achieve equity was one available to the Board on the evidence and argument. Based on our standard of review as found in City Centre Equities [ v Regina (City) , 2018 SKCA 43 ], we uphold the finding of the Board. [ 20 ] In respect to the second issue, the Committee found support for the Board’s decision in Saskatoon (City) v Midtown Plaza Inc. (12 October 2012) Regina, AAC 2011-0068, [2012] SMBAACD No 40 (QL) [ Midtown Plaza ]: [28] The Board relied on Midtown Plaza , a decision of this Committee rendered October 12, 2012.

That decision concerned the Midtown Plaza in Saskatoon. The Assessor, in that case, examined the range of rental rates in each property of the enclosed shopping centre grouping and then applied the median rental rate determined for each grouping with this stratification. The support for using median rates is found in Sasco Developments Ltd. v Moose Jaw (City) , 2012 SKCA 24 . The Assessor did not use the “actual” income for the subject property.

[ 21 ] The Committee reiterated its “concerns that the remittal order by the Board to the City does not comply with mass appraisal principles” (at para 8) and then concluded by remitting the matter to the assessor with instructions to assess in accordance with the directions given by it in paragraphs 8 to 13 of the Committee Decision . III.

Analysis [ 22 ] The City’s application is to be tested against the criteria specified by this Court in Rothmans, Benson & Hedges Inc. v Saskatchewan , 2002 SKCA 119 at para 6 , 227 Sask R 121 [ Rothmans ], with the “minor adjustments” described by Jackson J.A. in Saskatoon (City) v North Ridge Development Corporation , 2015 SKCA 13 at paras 52–55 , 451 Sask R 265.

The focus remains on whether the proposed appeal must be: (a) “of sufficient merit to warrant the attention of the Court of Appeal”; and (b) “of sufficient importance to the proceedings before the court, or to the field of practice or the state of the law, or to the administration of justice generally, to warrant determination by the Court of Appeal” ( Rothmans at para 6 , emphasis in original). I will structure my analysis by considering separately each of the City’s proposed grounds of appeal against these considerations. A.

The Committee erred in law by upholding the Board’s decision to admit evidence on suite size [ 23 ] This proposed ground of appeal relates to ss. 197(6) (

a) and 199(6) (

b) of The Cities Act , and what occurred in connection with the Owner’s appeal in respect to the 2017 assessment. The relevant statutory provisions provide as follows: 197

(6) A notice of appeal must be in writing in the form prescribed in regulations made by the minister and must: (

a) set out the specific grounds on which it is alleged that an error exists; … 199

(6) If, in the opinion of the secretary of the board of revision, the notice of appeal does not comply with

section 197 , the secretary shall: (

a) notify the appellant of the deficiencies in the notice of appeal; and (

b) grant the appellant one 14-day extension to perfect the notice of appeal. [ 24 ] The City’s argument is that the Owner’s original notice of appeal did not put into issue suite size and, given the Board’s refusal to allow the Owner to amend its notice of appeal, evidence on this issue should not have been admitted.

The Board’s admission of this evidence is said to be contrary to the direction in Corman Park (Rural Municipality) v 618421 Saskatchewan Ltd. , 2018 SKCA 29 at para 34 , 73 MPLR (5th) 1 [ Corman Park ], in which the Court emphasized that every notice of appeal must “set out the specific grounds on which it is alleged an error exists” ( Corman at para 33, quoting s. 225(6) of The Municipalities Act , SS 2005, c M-36.1 ).

The City argues that the Committee erred “in upholding the Board’s decision to allow in statutorily prohibited evidence”. [ 25 ] In my respectful view, this issue is of dubious merit and, in any event, is not sufficiently important to justify a grant of leave to appeal. [ 26 ] I acknowledge that the bar for assessing the merit of a proposed appeal is not set high.

In Rothmans , Cameron J.A. suggested such questions as the following should be considered at the merits stage of the leave request (at para 6): • Is it prima facie frivolous or vexatious? • Is it prima facie destined to fail in any event, having regard to the nature of the issue and the scope of the right of appeal, for instance, or the nature of the adjudicative framework, such as that pertaining to the exercise of discretionary power? • Is it apt to unduly delay the proceedings or be overcome by them and rendered moot? • Is it apt to add unduly or disproportionately to the cost of the proceedings? [ 27 ] However, here, in my respectful view, the City’s argument under this proposed ground of appeal ignores two things.

First, it ignores that the Owner’s notice of appeal was supplemented by its May 30, 2017 letter in accordance with s. 197(6) of The Cities Act . Second, it ignores that the basis of the Board’s decision to admit the evidence respecting suite size was that, when the Owner’s notice of appeal and letter of May 30, 2017 were looked at together, the Owner had put suite sizes into issue.

These conclusions appear from the Committee’s understanding that the Board accepted the Owner’s May 30, 2017 “perfection letter” clarified the Owner’s notice of appeal and put suite size issues in play before the Board, stating as follows: [23] The Board denied the request [by the Owner to amend its notice of appeal]. Thereafter, there was discussion as to whether [the Owner] could add facts or issues. The Board reasoned Exhibit A.2. (the perfection letter accepted by the Board) was received on May 30, which would have provided more than ample time for the Assessor to disagree with A.2.

The Board was also advised there had been many discussions with the Assessor about the concerns with respect to the property, including the impact of the actual size of the suites. The Board ruled [the Owner] could speak to either the size of the building or the size of the suites. [ 28 ] I fail to see a basis for the City to argue that there has been a violation of the principle established in Corman Park . At best, the City is left to argue that the Committee erred in not disagreeing with the Board’s

interpretation of the two documents before it which set out the grounds of appeal to the Board. It is not clear to me that this issue involves a question of law within the meaning of s. 33.1 of The Municipal Board Act , or that the Committee’s decision is even arguably in error. However, I do not need to decide these points, because of

my conclusion on the second aspect of the test for leave to appeal – the importance of the proposed appeal. [ 29 ] In Deer Lodge Hotels Ltd. v Saskatoon (City) , 2015 SKCA 105 , at para 21 (ii), 467 Sask R 134, Ryan-Froslie J.A. summarized how the notion of importance is applied in the context of an appeal pursuant to s. 33.1 of The Municipal Board Act : (ii) How importance of the proposed appeal is assessed is also different.

It will be measured not with respect to its effect on the ongoing court proceedings, but rather with respect to its effect on the impugned order or decision, and whether it raises a new or controversial issue of practice, or a new, uncertain or unsettled point of law. The focus of this analysis is on whether the issues raised have general as opposed to limited application. [ 30 ] Here, even if the proper

interpretation of the notice of appeal and the “perfection letter” could be elevated into a question of law, it appears to be one of that would not transcend the facts of this case. The situation in this case is also different than in Saskatoon (City) v Victory Majors Investment Corporation , 2019 SKCA 51 at para 61 [ Victory Majors Investment ], in which case Tholl J.A. granted leave to appeal in a case where “[t]he Committee decided the appeal on a variety of grounds not specifically listed in the grounds of appeal

section and not completely contained in the supporting facts section” of a notice of appeal. In this case, the

interpretation of the Board, as confirmed by the Committee, was that the ground of appeal to the Board was specified in the notice of appeal, as supplemented by the perfection letter. B.

The Committee erred in law by upholding the Board’s decision and making its own decision in the absence of evidence [ 31 ] The City seeks leave to appeal to advance the argument that the Board erred by deciding without evidence that “consideration of specific or average individual suite sizes in an apartment building is a standard mass appraisal method”. [ 32 ] I tend to agree with the Owner’s responses to this issue, which include that the City’s argument proceeds based on a misstatement of the evidence before the Board. However, there is an even more fundamental problem with this proposed ground of appeal.

The error alleged is that of the Board and was not specified as a ground of appeal to the Committee. Pursuant to s. 33.1 of The Municipal Board Act , the City’s appeal to this Court is from the Committee Decision , not the decisions of the Board. Therefore, the error alleged by the City is not that of the Committee but of the Board. I dismiss leave to appeal on this issue because it is destined to fail. C.

The Committee erred in law by applying the wrong standard of review to the admissibility of evidence [ 33 ] The City argues that the Board “erred in allowing in evidence relating to individual suite sizes as it was not specifically plead [ sic ] in the grounds of appeal”, and the Committee “lost focus” when it failed to address this issue in the Committee Decision . [ 34 ] Respectfully, this proposed ground of appeal is simply a recast of the City’s first proposed ground of appeal. I reject leave to appeal on this proposed ground for the same reasons I rejected the proposed appeal under ground A. D.

The Committee breached procedural fairness by: 1. Upholding the Board’s decision to admit evidence and decide the appeal on a ground of appeal that was not pleaded in accordance with s. 197(6)(

a) of The Cities Act and which the Board decided could not be added to the notice of appeal by way of amendment [ 35 ] The first wing of this proposed ground of appeal attempts, for a third time, to recast its objection to the Board allowing evidence of suite size based on its

interpretation of the Owner’s notice of appeal and the May 30, 2017 perfection letter. [ 36 ] I also observe that the City’s assessor specifically raised the fairness issue before the Board. The Board rejected the City’s fairness arguments, noting that it had received the perfection letter on May 30, 2017 “which would have provided more than ample time for the Assessor’s [ sic ] to disagree”.

The Committee makes note of this in paragraph 23 of its decision, quoted earlier, as well as the existence of “many discussions with the Assessor about the concerns with respect to the property, including the impact of the actual size of the suites”. [ 37 ] I reject the City’s request for leave to appeal for the same reasons as I rejected leave to appeal on grounds A and C. 2.

Modifying the Board’s direction to the assessor without that issue having been raised before the Committee by either party and without either party having an opportunity to be heard in breach of the audi alteram partem principle [ 38 ] This proposed ground relates to the Committee’s comments on the Board’s direction to the assessor to ensure that the stratification of the Building’s own rents meet mass appraisal principles. The City argues that it had not appealed the direction, which it said was “not at issue in the appeal to the Committee”.

The City’s proposition is that the Committee’s amendment to the remittal was a breach of fairness principles because it was not given an opportunity to make submissions on this issue. [ 39 ] In its notice of appeal to the Committee, the City had argued that the Board erred by concluding that potential gross annual income could be based on contract rents. In its submissions, the City had argued that this did not comply with principles of mass appraisal assessment. All of this put into issue before the Board whether, and how, actual rents could be used in the assessment of the Building.

In modifying the remittal, the Committee’s overall intent, therefore, was to answer the City’s argument and ensure that the final assessment

complied with mass appraisal principles. [ 40 ] The City’s argument makes relevant s. 226 of The Cities Act , which provides as follows: Decisions 226

(1) After hearing an appeal, the appeal board may: (

a) confirm the decision of the board of revision; (

b) modify the decision of the board of revision to ensure that: (

i) errors in and omissions from the assessment roll are corrected; and (ii) an accurate, fair and equitable assessment for the property is placed on the assessment roll; or (

c) set aside the assessment and remit the matter to the assessor to ensure that: (

i) errors in and omissions from the assessment roll are corrected; and (ii) an accurate, fair and equitable assessment for the property is placed on the assessment roll.

(2) If the appeal board decides to modify the decision of the board of revision pursuant to subsection (1), the appeal board may adjust, either up or down, the assessment or change the classification of the property.

(3) Notwithstanding subsections (1) and (2), a non-regulated property assessment shall not be varied on appeal using single property appraisal techniques.

(3.1) Notwithstanding subsections (1) and (2), an assessment shall not be varied on appeal if equity has been achieved with similar properties.

(4) After a decision is made pursuant to subsection (1), the secretary of the appeal board shall, by ordinary mail, send a copy of the decision together with written reasons, if any, for the decision to each party in the appeal.

(5) If the assessment roll has not been confirmed by the agency pursuant to

section 228, the assessor shall make any changes to the assessment roll of the city that are necessary to reflect the decision of the appeal board. [ 41 ] In its brief of law supporting its application for leave to appeal, the City acknowledged that s. 226 supported the Committee’s action: 89. The City acknowledges that the Committee enjoys remedial powers, as set out in

section 226 of The Cities Act to ensure an accurate, fair and equitable assessment for the Property may be place on the roll; however, these powers must be exercised within the context of a fair hearing in which the affected parties have a full opportunity to address the issues in argument and in evidence. [Citation omitted] [ 42 ] In neither its brief, nor in oral argument before me did the City offer any indication as to how its evidence or argument would have been different if the Committee had given prior indication that it intended to clarify the remittal. [ 43 ] For these reasons, in my respectful view, this proposed ground of appeal is destined to fail. [ 44 ] I also see nothing in it that is of any importance outside of this case, and for that additional reason would not grant leave to the City to appeal on this issue.

E. The Committee erred in law and jurisdiction in deciding the appeal based on methods which do not accord with (

i) standard appraisal methods pursuant to s. 163(f.3) of The Cities Act , (ii) mass appraisal pursuant to ss. 163(f.3) and 165(1) of The Cities Act , and/or (iii) the market valuation standard pursuant to ss. 163(f.1) and 165(5) of The Cities Act [ 45 ] According to the City, this ground of appeal relates to the “Board’s direction and the Committee’s extension of the direction into a remittal … [for the City] to use the actual contract rents from the [Building] only and to be applied to a group of one” (emphasis in original).

The proposition is that an error of law occurred and the Committee exceeded its jurisdiction by “allowing the [Building] to be appraised on its own using single property appraisal techniques”. This is said to be contrary to standard appraisal methods and principles of mass appraisal, including the requirement to meet the market valuation standard. [ 46 ] The City’s argument conflates the Board’s direction that the assessor should use “actual contract rents” to calculate potential gross rent with the additional directions given by the Committee.

To quote again from paragraph 8 of the Committee Decision , the Committee was concerned that “the remittal order by the Board to the City does not comply with mass appraisal principles”.

For this reason, and because the City’s appeal to this Court is from the decision of the Committee and not the decisions of the Board, reference to the Board’s decisions does little to assist the City in identifying an alleged error of law by the Committee. [ 47 ] I am left to struggle with what specific error the City is alleging the Committee committed when it gave directions on the “technique [to] be applied in stratifying the property’s own rents to meet mass appraisal principles” (at para 9).

[48] In Saskatoon (City) v Walmart Canada Corp., 2018 SKCA 2, Caldwell J.A. identified a role for evidence relating to the uniquefeatures of a property in the system of mass appraisals, stating as follows: [83] Despite this conclusion, this issue has not been decided in regards to what evidence can be adduced as to whether equity has beenachieved.

It is uncontradicted that The Cities Act prevents one-off variations to develop assessments, which are incompatible with massappraisal (see ss. 163(f.1), 165(1), 210(1.1) and 226(3); see also paragraph 57 of Sasco). [84] However, for the reasons that follow, the definition of equity within the legislation is broad enough to allow the respondenttaxpayers to adduce such evidence specifically in that context. While individual appraisals and actual market value of the property have noplace in the process of mass appraisal (see paragraph 34 of [Cadillac Fairview Corp.

Ltd. v Saskatoon (City), 2000 SKCA 84, [2000] 11WWR 89]), they may be considered along with the totality of the evidence to determine whether a model has assessed a propertyequitably. [49] As I have noted, s. 33.1 of The Municipal Board Act allows appeals to this Court “on a question of law or on a questionconcerning the jurisdiction”. It behooves a party seeking leave to appeal to be specific about the question that it is seeking this Court toanswer. The City’s proposed ground of appeal alleges error, without identifying the specific question it wants to raise.

In this case, theCommittee’s expressed intention was to ensure that the final assessment be conducted in accordance with the general principles the Cityespouses. That, as I understand it, was the purpose for the Committee’s directions to the assessor. [50] In Teal Cedar Products Ltd. v British Columbia, 2017 SCC 32, [2017] 1 SCR 688 [Teal Cedar], the Supreme Court of Canadaaddressed the importance of identifying the specific question of law at stake when a party asserts the right to appeal based on a statutoryright limited in that way.

In Teal Cedar, the statute was British Columbia’s Arbitration Act, RSBC 1996, c 55, which limited appeals toany “question of law arising out of” an arbitrator’s award (at s. 31(1)).

Justice Gascon, writing for the majority, emphasized the need to beable to distill legal questions from questions of mixed fact and law: [42] Unlike privative clauses which merely “signa[l]” deference in the context of judicial review of administrative tribunal decisions,statutory limitations on the scope of appellate review of arbitration awards are “absolute” (Sattva [Capital Corp. v Creston Moly Corp.,2014 SCC 53, [2014] 2 SCR 633], at para. 104).

In consequence, a finding that the questions on appeal — the Valuation, Interest andLillooet Issues — are not questions of law would wholly dispose of the issue of the courts’ jurisdiction to review those questions. [43] The process for characterizing a question as one of three principal types — legal, factual, or mixed — is also well-established inthe jurisprudence (Canada (Director of Investigation and Research) v. Southam Inc., (SCC), [1997] 1 S.C.R. 748, atpara. 35).

In particular, it is not disputed that legal questions are questions “about what the correct legal test is” (Sattva, at para. 49,quoting Southam, at para. 35); factual questions are questions “about what actually took place between the parties” (Southam, at para. 35;Sattva, at para. 58); and mixed questions are questions about “whether the facts satisfy the legal tests” or, in other words, they involve“applying a legal standard to a set of facts” (Southam, at para. 35; Sattva, at para. 49, quoting Housen v.

Nikolaisen, 2002 SCC 33,[2002] 2 S.C.R. 235). [44] That said, while the application of a legal test to a set of facts is a mixed question, if, in the course of that application, the underlyinglegal test may have been altered, then a legal question arises. For example, if a party alleges that a judge (or arbitrator) while applying alegal test failed to consider a required element of that test, that party alleges that the judge (or arbitrator), in effect, deleted that elementfrom the test and thus altered the legal test.

As the Court explained in Southam, at para. 39: . . . if a decision-maker says that the correct test requires him or her to consider A, B, C, and D, but in fact the decision-maker considersonly A, B, and C, then the outcome is as if he or she had applied a law that required consideration of only A, B, and C. If the correct testrequires him or her to consider D as well, then the decision-maker has in effect applied the wrong law, and so has made an error of law.

Such an allegation ultimately challenges whether the judge (or arbitrator) relied on the correct legal test, thus raising a question of law(Sattva, at para. 53; Housen, at paras. 31 and 34-35). Accordingly, such a legal question, if alleged in the context of a dispute under theArbitration Act, and assuming the other jurisdictional requirements of that Act are met, is open to appellate review. These “extricablequestions of law” are better understood as a covert form of legal question — where a judge’s (or arbitrator’

s) legal test is implicit to theirapplication of the test rather than explicit in their description of the test — than as a fourth and distinct category of questions. [45] Courts should, however, exercise caution in identifying extricable questions of law because mixed questions, by definition, involveaspects of law. The motivations for counsel to strategically frame a mixed question as a legal question — for example, to gain jurisdictionin appeals from arbitration awards or a favourable standard of review in appeals from civil litigation judgments — are transparent (Sattva,at para. 54; Southam, at para. 36).

A narrow scope for extricable questions of law is consistent with finality in commercial arbitration and,more broadly, with deference to factual findings. Courts must be vigilant in distinguishing between a party alleging that a legal test mayhave been altered in the course of its application (an extricable question of law; Sattva, at para. 53), and a party alleging that a legal test,which was unaltered, should have, when applied, resulted in a different outcome (a mixed question). [51] Although Teal Cedar involved the

interpretation and application of B.C.’s Arbitration Act, I find Gascon J.’s directioncompelling in the context of an appeal pursuant to s. 33.1 of The Municipal Board Act. A very similar point was made by Cameron J.A.when he explained his decision to dismiss an application for leave to appeal in Regina (City) v Gordstone Enterprises Ltd., 2003 SKCA 36[Gordstone Enterprises], a property tax assessment matter: [7] Getting to this, the substantive issue, in the context of the proposed grounds of appeal, provide elusive enough in itself.

Indeed, Ifound it difficult to get a clear fix on the error of law the Committee is said to have made. I appreciate what it is that concerns the City:That the Committee went wrong in coming up with a much lower [market adjustment factor] (.43) than that which had been decided uponbefore the case got to the Committee (.89). But, issues of process aside, in what way did it go wrong? [8] Did it explicitly or implicitly misconstrue the relevant provisions of the statute or the manual, or misapply them? If so, which ofthe provisions did it misconstrue or misapply? Or did it exceed its powers, and if so which?

This is the usual framework by which error oflaw is identified. With that in mind, I must say I had considerable difficulty in pinning the issue down. There is such a welter here as to

make it difficult to be precise about anything. (Emphasis in original) [ 52 ] In the end, I am left with the same position as Cameron J.A. in Gordstone Enterprises . To use the language of Teal Cedar , I have not been able to identify the extricable question of law (or jurisdiction), as opposed to a mixed question, from the various arguments the City seeks to advance in its proposed appeal. Finally, I am also unconvinced that the City’s appeal is of importance outside of the facts of this case to justify leave to appeal. For these reasons, I am not prepared to grant leave to appeal on this proposed ground. F.

The Committee erred in law by upholding the Board’s decisions that the assessment did not achieve equity [ 53 ] The City’s assertion is that “the Board and the Committee erred in determining that the assessment did not achieve equity”. [ 54 ] Again, this Court’s role is to supervise the Committee, not the Board. The sole passage in the Committee Decision the City points to as evincing error by the Committee is its “conclusion that the assessor’s model was in error and did not achieve equity and was one available to the Board on the evidence and argument” (at para 25).

This passage signals that the decision of the Committee was based on its evaluation of the findings of fact made by the Board. In my respectful view, the City has failed to identify a question of law arising from the Committee’s decision associated with this proposed ground of appeal. G.

The Committee erred in law by providing inadequate reasons that are unintelligible and are internally inconsistent [ 55 ] The City says that this “proposed ground of appeal focuses on whether or not the Committee provided reasons that are intelligible, allow for meaningful appellate review and allow the parties to know why the decision has been made”. [ 56 ] In my respectful view, this ground of appeal is of dubious merit and, in any event, lacks sufficient importance to justify a grant of leave to appeal. [ 57 ] The City has provided extensive written argument based on its

interpretation of the Committee Decision . Although length is not the hallmark of sufficient reasons, the extent to which the City has engaged in argument based on the Committee Decision signals the steepness of the hill the City will need to climb to demonstrate that those reasons were inadequate. The City concluded its argument in respect to this proposed ground of appeal by stating that “while this should not be an uncertain area of the law, the Committee has failed to provide intelligible reasons that are capable of meaningful appellate review and has raised uncertainty in the law”.

Implicit in this statement is that the law regarding the obligation of a tribunal, such as the Committee, to provide reasons is well-settled. At most, a grant of leave to appeal on this issue would result in this Court applying settled law to the unique facts of this case. For this reason, and in light of my conclusions with respect to the City’s other proposed grounds of appeal, I am not prepared to grant leave on this issue. IV. Conclusion [ 58 ] For the reasons I have given, I dismiss the City’s application for leave to appeal. The Owner is entitled to costs in the usual way. “Leurer J.A.” Leurer J.A.