Neptune Capital Inc. Appellant (Applicant) v. City of Yorkton and, 2019 SKCA 136

Court of Appeal for Saskatchewan Docket: CACV3087 Citation: Neptune Capital Inc. v Yorkton (City) , 2019 SKCA 136 Date: 2019-12-17 Between: Neptune Capital Inc. Appellant (Applicant) And City of Yorkton and Saskatchewan Assessment Management Agency Respondents (Respondents) Before: Whitmore, Schwann and Leurer JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Madam Justice Schwann In concurrence: The Honourable Mr. Justice Whitmore The Honourable Mr. Justice Leurer On Appeal From: AAC 2013-0112.1, Regina Appeal Heard: January 10, 2019 Counsel: Paul Harasen for the Appellant Neil Robertson, Q.C., for the Respondent Schwann J.A. I. Introduction [ 1 ] This appeal concerns the

interpretation and application of s. 227 of The Cities Act , SS 2002, c C-11.1 [ Act ]. Section 227(1) allows appeal decisions made by a board of revision [BOR] or by the appeal board to be applied to subsequent assessment years within the same revaluation cycle without the need for a further appeal being initiated. [ 2 ] Neptune Capital Inc. [Neptune] is the owner of non-regulated commercial property located in the City of Yorkton [City].

In 2017, Neptune applied to the Saskatchewan Municipal Board Assessment Appeals Committee [Committee] for a ruling with respect to the application of s. 227 of the Act to the 2014 and 2015 assessments of its property: see Neptune Capital Inc. v Yorkton (City) , AAC 2013-0112.1 (17 May 2017) Assessment Appeals Committee Decisions (2d Quarter) [ 2017 Committee Decision ]. [ 3 ] Subsequent to the issuance of the 2017 Committee Decision , this Court released two decisions pertaining to the

interpretation of s. 227: South Hill Mall Property Holdings Inc. v Prince Albert (City) , 2017 SKCA 52 [ South Hill ], and Prince Albert (City) v Prince Albert Co-op Association Ltd ., 2017 SKCA 53 [ PA Co-Op ]. Neptune took the position with the Committee that the 2017 Committee Decision was inconsistent with this Court’s jurisprudence and asked the Committee to revisit the 2017 Committee Decision in light of South Hill and PA Co-Op .

When the Committee declined to do so, Neptune sought and was granted leave to appeal the 2017 Committee Decision to this Court. [ 4 ] For the reasons that follow, I would allow Neptune’s appeal. II. Background [ 5 ] The Saskatchewan Assessment Management Agency [SAMA] is responsible for property assessments in Saskatchewan, including periodic revaluations.

Section 22 of The Assessment Management Act , SS 1986, c A-28.1 , provides that all assessable properties in every municipality are to be revalued under the direction and supervision of SAMA once every four years. SAMA also performs assessment valuations for most municipalities including, in this case, the City. [ 6 ] SAMA conducted revaluations in 2013 and in 2017 as part of its four-year cycle.

Between these revaluation dates (known as base dates), assessed values are carried forward each year to the following year, unless the assessed value is changed as a result of an appeal decision or there is a change in circumstance to the property ( s. 165(3.1) of the Act ).

This appeal concerns whether the Committee properly interpreted and applied s. 227 of the Act as it pertained to the Neptune property for the 2014 and 2015 taxation years (based on the 2013 base date). [ 7 ] While the decision under appeal relates to the Committee’s 2017 Committee Decision , an understanding of the chronology and history of the assessment appeals for the Neptune property, leading up the 2017 Committee Decision , is a necessary starting point. A. The 2013 assessment cycle [ 8 ] At the start of 2013, the City assessed the Neptune property at a value of $3,956,800.

Neptune appealed that assessment to the BOR on two bases: there was an error in the capitalization rate and an incorrect income quality rating had been applied to the

property. At the BOR hearing, the parties agreed to adjust the capitalization rate, which lowered the 2013 assessment to $3,488,200. On the issue of the income quality rating, the BOR agreed with Neptune’s position and further lowered the assessed value of the property to $2,989,200 ( Neptune Capital Inc. v Yorkton (City) , Appeal No 2-2013 (23 July 2013) Yorkton (City) Board of Revision [ 2013 BOR Decision ]). [ 9 ] The City placed a value of $2,989,200 on the 2013 assessment roll for the Neptune property, but SAMA, on behalf of the City, appealed the 2013 BOR Decision to the Committee on August 15, 2013.

For reasons that were not explained on this appeal, the Committee did not hear arguments on the 2013 BOR Decision until October 14, 2015, and did not render its decision until March 11, 2016: Yorkton (City) v Neptune Capital Inc. , AAC 2013-0112 (11 March 2016) Assessment Appeals Committee Decisions (1st Qtr) [ 2013 Committee Decision ]. The Committee concluded the BOR erred in relation to the income quality rating and, as a result, determined the assessed value for the Neptune property for 2013 should revert to $3,488,200 for taxation purposes. B.

The 2014 assessment roll [ 10 ] Since the Committee did not adjudicate SAMA’s appeal from the 2013 BOR Decision by January 1, 2014, the City carried forward the 2013 assessed value of $2,989,200 and placed that value on the 2014 assessment roll for the Neptune property. [ 11 ] SAMA appealed Neptune’s 2014 assessment roll value to the BOR on substantially the same grounds as what would be addressed in the 2013 Committee Decision , i.e., the income quality rating.

However, in a letter dated May 1, 2014, the BOR declined to hear SAMA’s 2014 appeal because the property had an “assessed value greater than $1 million as well as the complexity of the varying factors”. SAMA appealed the BOR’s decision to the Committee. [ 12 ] Since the Committee had not yet addressed the 2013 BOR Decision , and the issues were substantially the same, it heard both the 2013 and 2014 appeals together on October 14, 2015. In the 2013 Committee Decision , the Committee allowed SAMA’s appeal and ordered the Neptune property to carry a 2013 assessment roll value of $3,488,200.

In relation to the May 2014 appeal, however, the Committee issued a second set of reasons: Neptune Capital Inc. v Yorkton (City) , AAC 2014-0062 (11 March 2017) Assessment Appeals Committee Decisions (1st Qtr). In that decision, the Committee found no evidence that SAMA had paid the required fee and, as such, ruled it did not have jurisdiction to hear the appeal: “The Committee dismisses the appeal.

The property valuation remains at $2,989,200” (at para 25). [ 13 ] Later that same day, the Committee issued a revised decision in which it reaffirmed its earlier conclusion on jurisdiction and repeated the entirety of the decision except for paragraph 25, which was deleted in its entirety: Neptune Capital Inc. v Yorkton (City) , AAC 2014-0062 (Revised) (11 March 2017) Assessment Appeals Committee Decisions (1st Qtr) [ 2014 Revised Committee Decision ].

In other words, the decision no longer stated that the appeal was dismissed and no longer affirmed a property valuation of $2,989,200 for 2014. [ 14 ] Neither the 2013 nor 2014 decisions were appealed to this Court. C. The 2015 assessment roll [ 15 ] Like 2014, because the 2013 Committee Decision had not been rendered by the time the initial assessed value was placed on the assessment roll, the City assessed the Neptune property in 2015 at $2,989,200 (no change from the 2013 base date).

Altus Group Limited [Altus], on behalf of Neptune and 15 other property owners, appealed the assessment to the BOR, arguing error with how the City had calculated the capitalization rate. Once again, the BOR declined to hear the appeal because of its complexity. Thus, on it went to the Committee. [ 16 ] Pursuant to a decision rendered on June 9, 2016 ( Various Owners v Yorkton (City) , 2015-0047 (lead) and AAC 2015-0036 [Neptune] (9 June 2016), Assessment Appeals Committee Decisions (2d Qtr) [ 2015 Committee Decision ]), the Committee allowed the appeal and changed the capitalization rate from 7.6% to 8.5%.

The Committee went on to comment that, as an increase to the capitalization rate would result in decreased assessment values, in the normal course it would have asked SAMA to recalculate the assessments and allowed Altus to respond. However, to avoid further delay, the Committee left it to the parties to make the appropriate calculations.

The Committee’s direction, though, was subject to the following limitation: “Because the new 2014 and 2015 assessments are the result of an appeal, the revised assessed values cannot exceed the original 2014 and 2015 assessments” (at paras 8 and 65). [ 17 ] SAMA sought leave to appeal the 2015 Committee Decision to this Court, but leave was denied: Yorkton (City) v Harvard Developments Inc. (31 March 2017) Regina, CACV2922 (Sask CA). D.

The 2016 assessment roll [ 18 ] Although the original assessed value at the beginning of the 2016 taxation year for the Neptune property was established by the City as $2,989,200, the actual value under appeal was $3,488,200. The latter value reflected the assessment as amended by the 2013 Committee Decision that had been rendered in March of 2016. [ 19 ] Neptune appealed the 2016 assessment value of $3,488,200 to the BOR. E.

Summary table [ 20 ] For ease of reference, the table below summarizes the changes to the assessed values for the Neptune property arising from the various appeals to the BOR and the Committee over the 2013–2016 period:

January 1 Assessment Roll BOR Result Committee Result Court of Appeal Result 2013 (base date) $3,956,800 $2,989,200 $3,488,200 (when the 2013 Committee Decision was determined) Not appealed 2014 $2,989,200 $2,989,200 (declined SAMA’s appeal) $2,989,200 ( 2014 Revised Committee Decision ) Not appealed 2015 $2,989,200 $2,989,200 (declined owners’ appeals) Appeal allowed ( 2015 Committee Decision , assessed values to be calculated downward) Leave to appeal denied (refusing SAMA) 2016 $3,188,880 (amended from $2,989,200 as a result of the 2013 Committee Decision and the 2015 Committee Decision ) $3,188,880 (declined Neptune’s appeal) $3,188,880 ( 2017 Committee Decision , declined Neptune’s appeal) Within appeal (Neptune’s appeal) III.

The 2017 Committee Decision [ 21 ] As mentioned, in 2017 Neptune applied to the Committee pursuant to s. 227(2) of the Act for a ruling as to whether the City had correctly carried forward the previous decisions in relation to the 2014, 2015 and 2016 taxation years. More specifically, the Committee was asked to rule on the following four questions: (

a) Does the assessed value of $3,488,200, as determined by the 2013 Committee Decision , carry over to 2014? (

b) Does the assessed value of $3,488,200, as determined by the 2013 Committee Decision , carry over to 2015? (

c) What is the final assessed value for 2015? (

d) What is the final assessed value for 2016? [ 22 ] Altus (on behalf of Neptune) argued the City had deliberately and without lawful authority ignored the assessment established by the appeal process in the 2014 Revised Committee Decision , which was $2,989,200. Ignoring the Committee’s decision, it said, was in contravention of both The Municipal Board Act , SS 1988-89, c M-23.2 [ MBA ], and the Act .

Similar arguments were raised with respect to how the City had handled the Committee’s order made as a result of the 2015 Committee Decision in relation to the final 2015 assessment value. [ 23 ] The Committee began its decision with four preliminary observations. [ 24 ] First, the Committee mentioned the two appeals that were before this Court with respect to s. 227, namely South Hill and PA Co-Op . The Committee went on to state that if this Court’s decisions in those matters were found to affect the conclusions it reached on Neptune’s application, it would re-consider the matter pursuant to s. 40(5) (

c) of the MBA . This provision empowers the Committee to review, rescind, change or vary any decision if the original decision was based on an understanding of the law that differs from the law subsequently expressed by the Court of Appeal. [ 25 ] The second preliminary point pertained to the 2014 Revised Committee Decision and the difference between the conclusions set out in the original 2014 decision . As previously noted, in the original 2014 decision, the Committee had concluded it lacked jurisdiction to hear the appeal but had, nonetheless, established the property valuation for 2014 to be $2,989,200.

The revised decision omitted paragraph 25. As the Committee went on to explain in the 2017 Committee Decision , the 2014 Revised Committee Decision clarified that it had only ruled on the jurisdictional issue: “Any incorrect reference to assessed value following the Committee’s determination of the 2013 appeal earlier in the day had been removed” ( 2017 Committee Decision at para 22). [ 26 ] The third preliminary point made by the Committee pertained to the 2015 taxation year and the assessment roll.

Noting that this Court had denied SAMA’s application for leave to appeal the 2015 Committee Decision , the Committee confirmed that its “2015 decision respecting the assessed value of the subject property is upheld” ( 2017 Committee Decision at para 23). [ 27 ] The fourth and final preliminary point was in relation to how the Committee had dealt with SAMA’s 2014 appeal. It confirmed that the 2014 Revised Committee Decision represented the Committee’s decision and that the order made in that decision did not address the assessed value.

The Committee then stated that, in the absence of any argument, the circumstances of the property had changed from January 1, 2013, to January 1, 2016, and that s. 165(3.2) of the Act directs that “decisions of the Committee affecting the assessment of a property carry forward and apply to future years’ assessments” ( 2017 Committee Decision at para 29), unless the decision has been appealed to the Court of Appeal. [ 28 ] Those points made, the Committee turned to the four questions for which Neptune had sought a ruling. With respect to each issue, the Committee concluded as follows: (

a) Does the assessed value of $3,488,200, as determined by the 2013 Committee Decision , carry over to 2014? (

i) Insofar as there had been no appeal to this Court from the 2013 Committee Decision , the Committee concluded the assessed value that was placed on the assessment roll by the City for 2014 (i.e., $2,989,200) was incorrect. It concluded that the error was corrected by the 2014 Revised Committee Decision “in accordance with subsection 40(5) (

b) of the MBA ” ( 2017 Committee Decision at

para 32) . In the result, it held the assessed value of $3,488,200 (being the value determined by the 2013 Committee Decision ) carried forward and should apply to 2014. (

b) Does the assessed value of $3,488,200, as determined by the 2013 Committee Decision , carry over to 2015? (

i) The Committee began by asking itself whether the assessed value it had determined in the 2013 Committee Decision (i.e., $3,488,200) carried forward and became the initial assessed value for 2015. It reasoned that since the assessment of $3,488,200 represented the initial assessed value for the subject property in 2014, and, since there were no assessment appeals brought in 2014 and the circumstances affecting the property had remained the same, the initial assessed value for 2015 should be $3,488,200. This, it said, reflected the value determined by the Committee’s 2013 Committee Decision . (

c) What is the final assessed value for 2015? (

i) Applying the 2015 Committee Decision with regard to the increased capitalization rate, and using the rent rates for the 5- Best Income Quality Rating, the Committee said the assessed value for 2015 was $3,188,880. However, the 2017 Committee Decision unequivocally stated, “the final 2015 value cannot exceed the initial 2015 value on appeal” (emphasis added at para 42). The final assessed value for 2015 was therefore determined to be $3,188,880. (

d) What is the final assessed value for 2016? (

i) The Committee determined the initial value for 2016 was $3,188,880.

Since leave to appeal the 2015 Committee Decision had been denied by this Court, and there was no evidence of a change in circumstances, the Committee found the assessed value for the Neptune property had to be the same value as the 2015 final assessed value, or $3,188,880. [ 29 ] The following table reflects the 2017 Committee Decision : January 1 Assessment Roll Final Assessed Value Basis 2014 $3,488,200 $3,488,200 2013 Committee Decision 2015 $3,488,200 $3,188,330 2013 Committee Decision and 2015 Committee Decision 2016 $3,188,800 [ 30 ] After the 2017 Committee Decision was issued in May of 2017, Neptune asked the Committee to vary or rescind it to accord with this Court’s decisions in South Hill and PA Co-Op , which were issued in June of 2017.

The Committee declined to do so. IV. Issues [ 31 ] Neptune was granted leave to appeal the 2017 Committee Decision on the following grounds of appeal: (

a) The Committee erred in law in its

interpretation of

section 227 of The Cities Act , SS 2002, c C-11.1 (the “ Act ”) when it concluded that an assessed value of $3,488,200.00 (rather than $2,989,000.00) carried forward and applied to the assessment value of the subject property for 2014 [the 2014 carry over value]; (

b) The Committee erred in law in its

interpretation of

section 227 of the Act when it relied on its [ 2014 Revised Committee Decision ] decision in respect of the subject property, which had been revised pursuant to section 40(5) of The Municipal Board Act , SS 1988-89, c M-23.2 [the 2015 assessment roll value]; and (

c) The Committee erred in law in its

interpretation of

section 227 of the Act when it determined the initial assessed value of the subject property was $3,488,200.00 and the final assessed value was $3,188,880.00 for 2015 given an earlier Committee decision [ 2015 Committee Decision ] had determined the initial assessed value of the subject property was $2,989,200.00 and the final assessed value was $2,635,200.00 for 2015 [the initial and the final assessed value]. [ 32 ] I identify the issues before us as follows: (

a) Does s. 227 apply when an appeal has been dismissed for non-payment of the filing fee? (

b) Did s. 40(5) of the MBA empower the Committee to issue a revised decision in the circumstances? (

c) Did the Committee err in determining the initial and the final assessed values for 2015? [ 33 ] To be clear, although this appeal relates to the 2014 and 2015 assessments, this is not an appeal from the Committee’s decision about those years. Rather, this appeal is limited in scope to the 2017 Committee Decision and how the Committee applied s. 227(1) of the Act . In other words, the grounds of appeal pertain to whether the Committee correctly interpreted s. 227 of the Act in light of South Hill and PA Co-Op . V.

Applicable Legislation [ 34 ] Before turning to s. 227(1) , I find it useful to begin with a high-level overview of the tax assessment scheme established by the Act . [ 35 ] The Act sets out how assessments are carried out in the larger Saskatchewan cities, including Yorkton. Section 165(3.1)

requires that all property in a city be subject to assessment, with each assessment reflecting the facts, conditions and circumstances affecting the property as of January 1 of each year as if those facts, conditions and circumstances existed on the applicable base date: Preparing annual assessments 165

(3.1) Each assessment must reflect the facts, conditions and circumstances affecting the property as at January 1 of each year as if those facts, conditions and circumstances existed on the applicable base date.

Base date is defined as “the date established by [SAMA] for determining the value of property for the purpose of establishing assessment rolls for the year in which the valuation is to be effective and for each subsequent year preceding the year in which the next revaluation is to be effective” (s. 163(d)). [ 36 ] Pursuant to s. 174(2) of the Act , the assessor must prepare an assessment roll each year for all assessed property in a city by “not later than April 1st”, which, among other things, must show “the assessed value of the property” (s. 175(g)).

Annual notices of assessments are to be sent to property owners (s. 184) with each notice setting out the “date by which an appeal is required to be made” (s. 185(1)(c)). [ 37 ] Various levels of assessment appeals are contemplated by the legislation. In general terms, appeals of first instance are taken to the BOR (s. 197), which is empowered to confirm the assessment, or change it and direct a revision of the assessment roll by, among other things, changing the assessed value of the property and its liability to taxation or its classification (s. 210(1)).

The BOR is required to make its decisions within prescribed time limits (s. 210(4)).

Section 211 mandates that the “assessor shall make any changes to its assessment roll that are necessary to reflect the decision of a board of revision”. [ 38 ] A BOR decision may be further appealed to the Committee (s. 216). The Committee has the power under s. 226(1) of the Act to confirm, modify or set aside a BOR decision.

The Act envisions a further appeal from the Committee’s decision to this Court, with leave, on a question of law or jurisdiction ( s. 33.1 of the MBA ). [ 39 ] Finally, if the assessment roll has not been confirmed by SAMA pursuant to s. 228 of the Act , the assessor must make any changes to the assessment roll of the city that are necessary to reflect a decision of the Committee (s. 226(5)). The effect on taxes payable from an assessment appeal decision was explained in South Hill : [22]

Section 270 of the Act sets out the effect an appeal decision has on assessments. Pursuant to s. 270(1), if the assessment roll is confirmed before an appeal has been disposed of “no amendment or alteration to the roll may be made except as provided for in

section 178 or 179”. (Those sections have no application to the case under appeal.) However, the City must adjust the taxes in accordance with an appeal decision and refund or collect taxes as the case may be in accordance with that decision.

Where the assessment roll has not been confirmed, the assessment is to be adjusted in accordance with the appeal decision (s. 270(2)). [23] Subsection 165(3.2) provides that generally annual assessments must reflect any decision of the Committee that has been issued with respect to a property for that year , unless the decision has been appealed to this Court. [24] It is clear from the process set out in the Act that property owners have an annual right of appeal and that decisions resulting from such appeals will affect the assessment of that property for the year under appeal. (Emphasis in original) [ 40 ] This brings me to s. 227 of the Act , which lies at the heart of this appeal.

In broad terms, s. 227 provides for assessment appeal decisions to be applied to subsequent assessments of the same property within the same revaluation cycle, without the need for the taxpayer to bring a separate or placeholder appeal in subsequent years: Application of decisions 227

(1) A decision made by a board of revision or the appeal board on an appeal of an assessment of any property applies, to the extent that it relates, to any assessment placed on the assessment roll for the property after the appeal is initiated but before the decision is made, without the need for any further appeal being initiated with respect to the assessment.

(2) If the parties to an appeal cannot agree as to whether or to what extent subsection (1) applies in their circumstances, any party to the appeal may apply to the board that issued the decision to issue a ruling on the matter.

(3) On an application pursuant to subsection (2), the board may make any ruling that it considers appropriate and that ruling is subject to appeal in the same manner as any other decision issued by that board. VI. Analysis A. Does s. 227 apply when an appeal has been dismissed for non-payment of the filing fee? 1. This Court’s decision in South Hill [ 41 ] Neptune argues the Committee’s 2017 Committee Decision is inconsistent with the

interpretation given to s. 227 by this Court in South Hill and PA Co-Op and, as such, the 2017 Committee Decision must be set aside.

[ 42 ] The facts in South Hill are as follows. South Hill Mall Property Holdings Inc. [South Hill] had appealed its 2013 tax assessment to the BOR. When the BOR reduced South Hill’s market adjustment factor, the City of Prince Albert appealed the BOR decision to the Committee. The appeal before the Committee was still pending when South Hill received its 2014 tax assessment notice, which had not yet been downwardly adjusted to reflect the 2013 BOR decision. South Hill also appealed the 2014 assessment to the BOR and, once again, the BOR decreased the market adjustment factor.

In August of 2014, the City of Prince Albert sent South Hill a supplementary tax notice adjusting its property assessment for 2014 to accord with the 2013 BOR decision, but it then appealed the 2014 decision in which the BOR had also downwardly calculated the assessment. [ 43 ] On January 20, 2015, the Committee rendered its decision with respect to the City of Prince Albert’s 2013 appeal.

It overturned the BOR decision and restored the market adjustment factor to its original value: Various Owners v Prince Albert (City) , AAC 2013-0270 et al (20 January 2015) Assessment Appeals Committee (1st Qtr) [ 2013 South Hill Committee Decision ]. Later, in August of 2015, the City of Prince Albert withdrew its appeal of the BOR’s 2014 decision and sent forward another supplementary tax notice to South Hill to accord with the 2013 South Hill Committee Decision . South Hill disagreed with the supplementary tax assessment value and applied to the Committee for a ruling under s. 227.

The Committee held the 2013 South Hill Committee Decision should be applied to South Hill’s 2014 property tax assessment. Leave to appeal that ruling was granted. [ 44 ] The question on appeal to this Court was whether the City of Prince Albert could invoke s. 227 to carry forward the 2013 South Hill Committee Decision to the 2014 assessment.

Speaking for the Court, Ryan-Froslie J.A. began by identifying the purpose behind this provision: “ s. 227(1) was meant to provide a mechanism by which appeal decisions of the BOR or the Committee can be applied to a subsequent assessment without the need for a further appeal” ( South Hill at para 26 ). However, for the carry over effect of s. 227(1) to apply, she identified four preconditions that must exist: [26] … The

section provides certain preconditions to its application. For the

section to apply, the subsequent assessment must be placed on the roll, that placement must occur after the appeal of the prior assessment has been initiated but before a decision has been rendered, and the subsequent assessment must relate to the same property as the decision to be extended.

Finally, the BOR or Committee decision will only be applied to a subsequent assessment “to the extent that it relates” to such assessment. [ 45 ] Justice Ryan-Froslie expanded on the fourth prerequisite and the meaning ascribed to the phrase “to the extent that it relates” to such assessment: [26] … Axiomatically, if the assessment model has not been altered and nothing has changed with regard to the facts, conditions and circumstances of the property, then the BOR or Committee decision will obviously be applicable to a subsequent assessment, provided the subsequent assessment has not itself been appealed .

In this appeal, however, not only was the subsequent assessment appealed, but the BOR had rendered a decision with respect to that appeal, which reduced the MAF [market adjustment factor] and thus changed the assessment. (Emphasis added) Also see City Centre Equities Inc. v Regina (City) , 2019 SKCA 80 at para 45 , 91 MPLR (5th) 1 [ City Centre ]. [ 46 ] With that, Ryan-Froslie, J.A. then turned to the argument advanced by the City of Prince Albert.

It had argued that s. 227 was “an ‘overriding provision’ that operated to nullify any subsequent appeal decision of the BOR or the Committee relating to an intervening assessment” (at para 14). That argument was rejected by this Court for several reasons, including the fact that the 2014 assessment had been appealed and the BOR had rendered a decision regarding the assessment.

Speaking for the Court, Ryan-Froslie J.A. stated that “because the BOR had rendered a decision with respect to South Hill’s 2014 assessment, the Committee’s decision relating to South Hill’s 2013 assessment could no longer be said to ‘relate’ to the 2014 assessment. This is because the BOR decision changed the 2014 assessment” (at para 30). [ 47 ] In assessing the arguments in South Hill , this Court found favour with the Committee’s reasoning in Saskatoon (City) v North Ridge Development Corporation , AAC 2011-0089 and AAC 2012-0066 (18 December 2012) Assessment Appeals Committee (4th Qtr) [ North Ridge ].

North Ridge appealed its property assessments for 2011, 2012 and 2013 to the BOR. The BOR dismissed North Ridge’s 2011 and 2012 appeals and a subsequent appeal from that decision to the Committee was dismissed. Leave to appeal the Committee’s decision to this Court was denied. The BOR, however, allowed the 2013 appeal. In response to the BOR’s decision, the City of Saskatoon appealed that decision to the Committee but, importantly, subsequently abandoned its appeal when this Court denied leave to appeal in relation to the 2011 and 2012 decisions.

The City of Saskatoon unilaterally applied the Committee’s decision for the 2011 and 2012 taxation years to the 2013 assessment. North Ridge applied for a ruling under s. 227. [ 48 ] The following portions of the Committee’s decision in North Ridge were cited with approval in South Hill : [37] The Committee held the 2011 and 2012 decisions did not apply to North Ridge’s 2013 assessment. In doing so, the Committee stated: … [26] … The limitation we see in subsection 227(1) of the Act is that it applies to ensure consistent application of appeal board decisions to future years’ assessments.

It provides protection to the taxpayer, direction to the Assessor and saves systemic time and money. We have noted that it does not bar the taxpayer from initiating an appeal in any year, which North Ridge did in 2013 regardless of the pending decisions of the Committee. This is one of the keys to this appeal. [27] In keeping with the Committee’s understanding of the purpose of subsection 227(1) , we interpret its scope as being limited by the phrase in the subsection that appeal decisions apply to subsequent assessments “without the need for any further appeal”.

It should not be read more broadly as though it also said “or in spite of any further appeal”. Accordingly, this subsection does not apply given the circumstances surrounding this assessment because for 2013, an appeal was not only launched, but the Board heard and decided it. Any application of an appeal decision to the subject property’s assessment contemplated in subsection 227(1) is limited by the final decision

of the appeal board hearing it for that year. In this case, the Committee’s 2011 and 2012 decisions do not apply. The City’s opportunity to have a Committee decision apply to the 2013 assessed value, given the Board heard and decided an appeal for that year on the same issue as the Committee’s decision, was lost when the City withdrew its 2013 appeal of the Board’s decision to the Committee. (All emphasis omitted) [ 49 ] In the end, this Court in South Hill concluded that the effect of s. 227(1) is as follows: [39] The Committee’s reasons in North Ridge as set out at paras 25–27 are persuasive and compelling.

In my view, the effect of s. 227(1) is to apply an appeal decision with respect to a property assessment to a subsequent assessment “without the need for any further appeal”. It does not, however, extinguish a taxpayer’s right to appeal that subsequent assessment, nor does it render a decision with respect to such an appeal null and void. The subsection speaks only to the effect an appeal decision has on a subsequent assessment. It does not speak to any effect such a decision may have on a “subsequent appeal” or the decision emanating from such an appeal.

Also see PA Co-Op and City Centre (at paras 34–51 ). [ 50 ] There is one final point to be made about the South Hill decision: s. 227 applies to subsequent assessments , not to subsequent appeals. As noted in paragraph 39 of that decision, the application of s. 227 cannot derogate from or defeat any subsequent appeal. This makes protective or placeholder appeals unnecessary, yet, at the same time, recognizes the annual right of appeal, which allows a party seeking a different decision to bring new evidence or a better argument than was presented in the previous year. 2.

Application to the facts [ 51 ] Neptune’s argument turns on whether there was an appeal by SAMA of the 2014 assessment roll value. To briefly refresh, Neptune had appealed the City’s initial 2013 assessment of $3,956,800 to the BOR, which reduced the assessed value of the property to $2,989,200 (the 2013 BOR Decision ). SAMA then appealed the 2013 BOR Decision to the Committee. Because the Committee was unable to hear the appeal prior to the City opening its assessment roll for 2014, the City placed the assessed value that had been determined by the BOR (i.e., $2,989,200) on the assessment roll.

SAMA then appealed the 2014 assessment on the income quality rating issue. When the BOR refused to hear SAMA’s 2014 appeal, SAMA appealed the BOR’s decision to the Committee. The Committee heard both the 2013 and 2014 appeals at the same time. In the 2013 Committee Decision , the Committee allowed SAMA’s 2013 appeal and established the assessed value for the property at $3,488,200.

With respect to SAMA’s 2014 appeal, though, the Committee ruled that because of the non-payment of the applicable fee, it had no jurisdiction to hear it (the 2014 Revised Committee Decision ). [ 52 ] With that backdrop in mind, I return to the 2017 Committee Decision and how the Committee arrived at its conclusion that the assessed value for the Neptune property for 2014 (and 2015 and 2016) should be the same as established by the 2013 Committee Decision , i.e., $3,488,200. The Committee began its analysis by citing s. 165(3.2) and s. 227 of the Act .

The Committee concluded that its decisions carry forward in subsequent years and apply unless those decisions have been appealed to this Court. Since there was no appeal to this Court from the 2013 Committee Decision , nor any argument raised about a change in circumstance affecting the subject property, the Committee concluded the assessed value determined by that decision for 2013 carried forward into 2014 (i.e., $3,488,200). [ 53 ] Neptune argues the Committee erred in its application of s. 227 . It submits that, based on the

interpretation given to s. 227 in South Hill and PA Co-Op , s. 227 could not be invoked because there was an extant appeal taken by SAMA in 2014. Since s. 227 (as interpreted by this Court) does not allow for a carry over of a previous year’s assessed value in the face of an appeal, Neptune contends the assessed value for the property in 2014 should be the initial assessed value that was placed on the assessment rolls in 2014 – that is to say, $2,989,200.

Neptune argues SAMA’s appeal from the 2014 assessment was an appeal that was dismissed, albeit because SAMA had failed to pay the filing fee. [ 54 ] Before turning to the parties’ arguments, it must be emphasized that both parties agree this appeal turns on the narrow question of whether there was an appeal taken by SAMA with respect to the BOR’s 2014 decision.

No argument was advanced by either party about the relationship or potential conflict between s. 165(3.2) of the Act (which the Committee appeared to rely on) and s. 227; accordingly, I do not propose to address that issue. [ 55 ] Neptune suggests its argument is supported by the dicta in PA Co-Op and the wording of s. 218 of the Act . I turn first to the facts in PA Co-Op . The City of Prince Albert had sought to resurrect an appeal pursuant to s. 217(6) of the Act that it had previously withdrawn.

That provision permits the Committee to allow an appeal to proceed where an appellant’s failure to perfect it is due to procedural error. In PA Co-Op , this Court held a withdrawal was not the same thing as a failure to perfect an appeal, and that, once withdrawn, the appeal could not be resurrected: “To perfect an appeal means to take all steps necessary to bring the appeal to a hearing. Implicit in the concept of perfecting an appeal is the pre-existence of an appeal.

In this case, no appeal exists because the City has withdrawn it ” (emphasis added, at para 32). [ 56 ] Neptune also draws support from s. 218 : Fees on appeal 218

(1) When filing a notice of appeal pursuant to

section 217, the appellant shall pay the applicable filing fee established for the purposes of an assessment or classification appeal pursuant to this or any other Act . …

(3) If an appellant fails to pay the fee as required pursuant to this section, the appeal is deemed to be dismissed . (Emphasis added) [ 57 ] Taken together, Neptune argues these authorities support the conclusion that SAMA’s failure to pay the filing fee for its 2014

appeal did not negate the existence of its appeal. Neptune contends that the appeal existed once filed, and, although SAMA failed toperfect its appeal by paying the filing fee, that failure did not undo the fact that an appeal had been filed in the first place. [58] SAMA, on the other hand, argues that what transpired in relation to the 2014 proceedings should not be considered an appealsince the Committee found it had no “jurisdiction to hear the appeal” (2014 Revised Committee Decision at para 24) and there was noappeal decision on its merits.

It counters Neptune’s arguments by submitting that a ruling on jurisdictional grounds means there was noappeal. Accordingly, says SAMA, if the 2014 appeal was a nullity or did not exist, then the Committee properly invoked s. 227 byapplying the 2013 Committee Decision to the 2014 assessment roll for the Neptune property. [59] SAMA suggests the decision in PA Co-Op is distinguishable on its facts since it involved a situation where the appeal waswithdrawn.

Withdrawal of a valid appeal, SAMA argues, means there is no appeal in existence after the time of withdrawal and the act ofwithdrawing an appeal does away with the substance of it. SAMA argues the situation is even stronger here since there was no validappeal to begin with and, thus, there was no decision on the merits.

An unsuccessful attempt to appeal or an unsuccessful attempt toperfect an appeal, SAMA argues, is not an appeal at all. [60] In response to Neptune’s argument about the deemed dismissed provision in s. 218, SAMA submits the word deemed wasused to establish a legal fiction in the sense that things are deemed to be something they are not.

The gist of SAMA’s argument is thatthe word deemed signals the appeal itself is a legal fiction, that it is not valid and, therefore, it was non-existent from the start. [61] Finally, and in any event, SAMA contends Neptune should not be permitted to now argue there was an appeal in 2014 when ithad urged the Committee to dispense with the same appeal on jurisdictional grounds for non-payment of the filing fee. This, SAMAsays, is the equivalent of Neptune trying to have it both ways. [62] I have trouble with SAMA’s argument for the reasons that follow. In my view, s. 218(3) is quite clear.

It deems an appeal tobe dismissed if the appellant fails to pay the fee. It does not deem the appeal to have never existed. In any event, the phrase, “deemed tobe dismissed”, speaks to a disposition of what had to have been an extant appeal. Respectfully, SAMA’s argument that the word deemedestablishes a legal fiction also cuts the other way. It could be viewed that to deem something means to bring a thing that was non-existentinto existence.

Applying this logic, deeming an unperfected appeal to be dismissed confirms its existence because there has to have beenan appeal in the first place in order for it have been dismissed. [63] Further, the PA Co-Op decision does not stand for the proposition that a withdrawn appeal never existed. That decision onlysays an appeal ceases to exist once it is withdrawn; it says no more than that. Furthermore, PA Co-Op makes the point that withdrawingan appeal terminates the appeal and does away with its substance (at para 33). This would suggest that an appeal has substance and is nota nullity prior to being withdrawn.

In any event, the case before us is not a situation where SAMA’s appeal was withdrawn. Rather,SAMA’s appeal was heard and disposed of by the Committee because of non-compliance with s. 218. While the Committee did notdetermine the appeal on its merits, it cannot be credibly argued that the appeal did not exist simply because the Committee found itselfbound by the results deemed by legislation. [64] Support for my conclusion can also be drawn from the

interpretation of the word appeal in the context of the statues.Although the term appeal has “no fixed meaning”, an appeal is generally described as a “complaint made to a higher court” concerning afinding “made by a lower court” (Linda S. Abrams, Kevin P. McGuinness and Jay Brechner, Halsbury’s Laws of Canada, CivilProcedure, 1st ed (Markham: LexisNexis, 2017) at HCV-281 [Halsbury’s]).

An appeal has also been defined as “a review of an inferiorbody by a superior court for the purpose of testing the soundness of the decision” (Daphne Dukelow, ed, The Dictionary of CanadianLaw, 4th ed (Toronto: Carswell, 2011) sub verbo “appeal”). [65] An appeal is not considered to be a proceeding, but is rather “a step in a proceeding” (Denison Mines Ltd. v Ontario Hydro(2001), (ON CA), 150 OAC 387 (CA) at para 14).

An appeal is a “process, an event which may occur over a periodof time, and may or may not include a final decision”: LeClair v Manitoba (Residential Care), (MB CA), [1999] 9WWR 583 (Man CA) at para 28.

The term appeal encompasses “the hearing of the complaint in the higher court, the act of thecomplainant in invoking the jurisdiction of the higher court, and the procedure whereby the complaint is brought before the highercourt” (Halsbury’s Laws of Canada, Civil Procedure (2017 Reissue), 1st ed (Markham: LexisNexis, 2017) at para HCV-281). [66] More to the point, the legal fiction involved in deeming an appeal to be dismissed is not relevant to the existence of theappeal.

In Canada (Attorney General) v Scarola, 2003 FCA 157 at para 21, [2003] 4 FC 645, Létourneau J.A. addressed s. 16.2(2) of theTax Court of Canada Act, RSC 1985, c T-2, which deems a discontinued action to be dismissed: [21] … Subsection 16.2(2) operates to turn the filing of a discontinuance into a constructive dismissal akin to an actual dismissal. Inother words, the discontinuance of an appeal, as a result of that subsection, takes on all of the properties of a dismissal. It produces thesame effect as a judgment of dismissal by the Court, albeit that effect is obtained by sheer operation of the legal fiction.

In either case,the powers of the Court are spent: the decision maker is functus officio. A dismissal, deemed or actual, is a final determination whichcloses the matter, barring some vitiating circumstances such as fraud or some statutory authority allowing the decision maker to retain orrecapture the lost authority. (Emphasis added) [67] Section 218(3) of the Act deems an appeal to be dismissed where the filing fee is not paid within 30 days.

This result amountsto a constructive dismissal of an appeal and is a decision of the Committee, even though the result is obtained by function of statute.Thus, I find the Committee did not err in concluding it had no jurisdiction to hear the appeal because of s. 218(3), but that result did notmean the appeal was somehow void or non-existent from the start. If the Legislature had intended an appeal to be treated in that mannerin the face of unpaid filing fees, it could easily have said so.

Rather, SAMA’s 2014 appeal is best seen as an appeal that was filed but“deemed to have been adjudicated” by a function of a legislative provision (Stewart v Canada, 2018 TCC 75 at para 52). [68] As to SAMA’s argument that Neptune should not have it both ways, I find this more of an observation than a legal argument.There is nothing improper with, or contradictory, for that matter, on the one hand, Neptune arguing the Committee lacked jurisdiction to

hear SAMA’s appeal, and, on the other, arguing there was an appeal for purposes of s. 227. There is also nothing to prevent Neptunefrom benefitting from SAMA’s failure to perfect its appeal. By the same token, the position taken by SAMA could be seen in the samelight.

Having argued before the Committee that there was an appeal that should be decided on its merits, it now suggests the opposite. [69] Finally, in concluding it lacked jurisdiction to hear SAMA’s appeal, it is of note that the Committee considered the applicableappeal procedures set out in the Act, heard from the parties and then rendered a written decision. Therefore, the dismissal of SAMA’s2014 appeal has to be seen as a decided appeal, albeit one that was not decided on the merits.

Whether the Committee had jurisdiction tohear the appeal is a question of law reviewable on a standard of correctness (Corman Park (Rural Municipality) v 618421 SaskatchewanLtd., 2018 SKCA 29 at para 3, 73 MPLR (5th) 1 [Corman Park], and Gary L. Redhead Holdings Ltd. v Swift Current (RuralMunicipality), 2017 SKCA 47 , 2017 SCKA 42, [2017] 9 WWR 296).

Therefore, the fact that the Committee’s decision itselfcould be appealed surely qualifies the 2014 Revised Committee Decision as a disposition of the appeal and thus undercuts much ofSAMA’s argument that it never existed. [70] In the alternative, if there was an appeal, SAMA argues that in order to displace the operation of s. 227, there must not only bean appeal on the merits but one where a decision has been rendered.

Anything less, says SAMA, would lead to unintended consequences,such as late filing and unperfected appeals designed to achieve a desired outcome on the subsequent year’s assessment. [71] There are two obvious problems with the merits aspect of SAMA’s argument. First, nothing in s. 227(1) restricts, qualifies ornarrows the concept of what an appeal might encompass in any way. Second, SAMA’s notice of appeal to the BOR filed on May 5,2014, did advance substantive arguments.

The fact those arguments were never adjudicated by the Committee and that the appeal wasdismissed because of the operation of statute does not detract from the fact that the essence of the appeal was substantive in nature. [72] Furthermore, I find SAMA’s argument confuses the carry over effect envisioned by s. 227 to a subsequent assessment with theeffect of a subsequent appeal decision.

This point was addressed in South Hill: “While s. 227 enables a prior appeal decision to beapplied to a subsequent assessment, it has no effect on appeal decisions rendered with respect to those subsequent assessments”(emphasis added, at para 34). Similarly, the following was noted in PA Co-Op: “Not all assessments will be consistent in every year.This is so because not all taxpayers appeal their assessments.

Those who do appeal have their assessment adjusted in accordance with theappeal decision” (emphasis added, at para 26). [73] I find myself unable to agree with the proposition that in order to displace s. 227, there must be a decided or rendered appealon the substantive merits of the matter. [74] There can be little doubt that resolution of this appeal – as it was in South Hill – is complicated by the delay incurred inhearing and deciding the 2013 and 2014 assessment appeals, the number of related appeal decisions and by the intervening judgments ofthis Court.

Notwithstanding the complicated factual backdrop, SAMA’s position is, in my view, inconsistent with the fundamentalpurpose of s. 227.

In the context of an identical provision contained in The Municipalities Act, SS 2005, c M-36.1, Caldwell J.A.addressed its effect in the following terms in Corman Park: [28] … That is, if the process of appealing an assessment consumes enough time that one or more annual assessments have been madesubsequently in respect of the property, then an appeal decision on the first-in-time assessment – whether of a board of revision or of theCommittee – applies to the extent it relates to any subsequent-in-time assessment, whether or not the subsequent assessments havethemselves been appealed (see: South Hill, addressing the effect of the equivalent of s. 257 under The Cities Act). [75]

Section 227 simply provides a mechanism for an appeal decision with respect to a property assessment to apply to asubsequent assessment without the need for a placeholder appeal.

Section 227 exists because of the proposition that each year’sassessment is a separate determination, which entitles a property owner to appeal in each case.

Section 227 is designed to avoid the needfor separate appeals where an issue arises in one assessment year and then again in subsequent years. However, when the assessment in aparticular year is called into question by way of an appeal, the basis for applying the previous year’s assessment that is subject to the firstappeal is arguably gone. Once again, South Hill emphasizes that s. 227 “does not, however, extinguish a taxpayer’s right to appeal thatsubsequent assessment, nor does it render a decision with respect to such an appeal null and void” (at para 39). [76] Reading South Hill and PA Co-Op together reveals the following: (

a) s. 227 cannot be invoked to apply an appeal decision result to a subsequent assessment value if that assessment has itselfbeen appealed; (

b) a withdrawn appeal of a subsequent assessment does not preclude the application of s. 227; and (

c) a BOR or Committee decision will only apply to a subsequent assessment “to the extent that it relates” to such anassessment. As discussed above, “to the extent that it relates” has been interpreted to mean that an appeal decision will relate to the assessment forthe subsequent year if the subsequent assessment has not been appealed (City Centre at para 45 and South Hill at para 26). [77] City Centre is another decision from this Court that dealt with s. 227. After reviewing the placement of s. 227 in the Act, itslegislative history and the

interpretation it was given in South Hill, Ottenbreit J.A. considered the meaning of the words “to the extentthat it relates” – “s. 227 will apply and the appeal decision will ‘relate’ to the assessment for the subsequent year if (

a) the assessmentmodel has not been altered, (

b) nothing has changed with regard to the facts, conditions and circumstances of the property, and (

c) thesubsequent assessment has not itself been appealed” (at para 45). It is of note that City Centre did not specify whether there needs to be arendered decision with regard to the subsequent appeal, but it did suggest that an appeal of a subsequent assessment is sufficient todisplace s. 227: “s. 227 cannot be invoked to apply to an appeal decision if there is already an appeal with respect to the subsequentyear’s assessment” (at para 78). [78] One of the issues raised in City Centre was whether the 2014 appeal decision could be said to relate to the 2015 assessment,

considering the decision changed the assessment. The applicability of s. 227 was challenged on the basis that the different assessment constituted a change “with regard to the facts, conditions and circumstances of the property” ( South Hill at para 26 ). On this point Ottenbreit J.A. concluded as follows ( City Centre ): [51]

Section 227 clearly also contemplates the partial application of an appeal decision because it uses the words “to the extent”. Implicit in this phrase is that there will be incongruences between the appeal decision and the subsequent assessment. The mere fact there is such an incongruency is therefore not determinative of applicability. Applicability must be assessed on a case-by-case basis.

The question is whether the appeal decision is sufficiently congruent in regard to the facts, condition and circumstances of the property and the assessment model so that the decision or significant aspects thereof can be said to relate to the subsequent assessment. (Emphasis in original) [ 79 ] Several conclusions can be drawn from the analysis in City Centre . First, City Centre does not insist that the appeal of the subsequent assessment result in a rendered decision. Second, like the decision in South Hill , City Centre assumes an appeal decision will change the assessment.

Third, City Centre treats incongruences between the appeal decision and subsequent assessments as a separate inquiry from whether there was an appeal of a subsequent assessment. The incongruences relate to whether the “facts, conditions and circumstances of the property” have changed, rather than to the validity of the appeal. 3. Conclusion on non-payment of fees [ 80 ] Returning to the matter at hand, in view of the fact that the 2014 assessment value was appealed, and that appeal was not withdrawn, s. 227 cannot be invoked to carry over the 2013 Committee Decision result onto the 2014 assessment roll.

Since there was no argument about a change to the facts, conditions and circumstances of the property, the initial assessed value for 2014 should be $2,989,200. Having reached this conclusion, I wish to make clear that this decision does not speak to any adjustment to the assessed value that may arise from the results of a subsequent appeal decision: “While s. 227 enables a prior appeal decision to be applied to a subsequent assessment, it has no effect on appeal decisions rendered with respect to those subsequent assessments” ( South Hill at para 37 ). B.

Did s. 40(5) of the MBA empower the Committee to issue a revised decision in the circumstances? [ 81 ] This ground of appeal appears to challenge the Committee’s

interpretation of its powers under s. 40(5) of the MBA : Finality 40

(1) Except where otherwise specifically provided: (

a) every decision or order of the board is final; and (

b) no order, decision or proceeding of the board shall be questioned or reviewed, restrained or removed by prohibition, injunction, certiorari or any other process or proceeding in any court. …

(5) Notwithstanding subsection (1), the board may review, rescind, change, alter or vary any decision, approval or order made by it within one year of making the decision: (

a) if the board’s original decision, approval or order was based on a mistake in calculation or on a clerical error; (

b) if the board’s original decision was based on incorrect information supplied to it by another person or organization; or (

c) if the board’s original decision was based on an understanding of the law that differs from the law as subsequently expressed in a ruling of the Court of Appeal or the Supreme Court of Canada. [ 82 ] As set forth above, the Committee issued two decisions in relation to SAMA’s 2014 appeal. In the first, after finding it had no jurisdiction to hear the appeal, the Committee concluded, “The Committee dismisses the appeal. The property valuation remains at $2,989,200” (at para 25). In the 2014 Revised Committee Decision , released later that day, the Committee deleted paragraph 25 in its entirety.

Common to both decisions, though, is the Committee’s finding that it lacked jurisdiction to hear the appeal because of non- payment of the filing fee. [ 83 ] The genesis for this ground of appeal rests in the fact that the Committee issued revised reasons. However, Neptune does not argue the Committee lacked authority under s. 40(5) to make a revised decision, nor does it argue the Committee erred in its result in the 2014 Revised Decision as a standalone basis to set aside the Committee’s decision.

Rather, Neptune takes the position that the Committee’s application of s. 40(5) is really a subset of, or is related to, its first ground of appeal: i.e., whether there was a 2014 appeal. SAMA argues paragraph 25 of the original decision was superfluous and logically inconsistent with paragraph 24 (finding of no jurisdiction).

As indicated above, SAMA contends the 2014 Revised Committee Decision cannot properly be considered a rendered decision and it cannot be appealed since there was no decision on the merits. [ 84 ] The plain reading of s. 40(5) allows the Committee to “review, rescind, change, alter or vary any decision, approval or order made by it”. The exercise of this power is subject to several limitations. First, the revised or rescinded order or decision must be made within one year of the original decision.

Second, the Committee may only exercise the power under s. 40(5) if the original decision, approval or order was based on a “mistake in calculation or on a clerical error” ( s. 40(5) (a)), “incorrect information supplied to it by

another person or organization” (s. 40(5)(b)) or “an understanding of the law that differs from the law as subsequently expressed in a ruling of the Court of Appeal or the Supreme Court of Canada” ( s. 40(5) (c)). [ 85 ] Neither party argued that the preconditions to the Committee’s exercise of its power under s. 40(5) to revisit its earlier decision did not exist. As such, I will assume for present purposes that the Committee had the authority under s. 40(5) to revise its 2014 decision in the manner it did in this case.

That said, I find the 2014 Revised Committee Decision actually assists Neptune’s core argument that there was, in fact, an appeal in 2014. I say this for two reasons. [ 86 ] First, the Committee may only review, rescind, change, alter or vary a decision, approval or order that it made . In other words, the Committee’s conclusion that it had no jurisdiction has to be seen as a “decision, approval or order” for this provision to even apply.

True, it was not a decision on the merits of the appeal, but it was a decision nonetheless. [ 87 ] Second, although the 2014 Revised Committee Decision deleted the Committee’s earlier bottom-line conclusion (i.e., appeal dismissed), the omission of this phrase does not alter the effect of s. 218, which, as explained above, is binding on the Committee.

Regardless of the arguments advanced by the parties before the Committee, pursuant to s. 218(3) the Legislature has seen fit to direct the result of an appeal where the required fee is not paid: appeal dismissed. [ 88 ] Finally, in answer to SAMA’s argument that the appeal was invalid, void or never existed, the Committee plainly did not make that ruling in the 2014 Revised Committee Decision . Rather, it simply concluded it lacked the jurisdiction to hear the appeal because the filing fee had not been paid.

Removing any reference to the assessed value for 2014 does not implicitly mean the value should be $3,488,200 instead of $2,989,200. [ 89 ] In the result, assuming the preconditions for the application of s. 40(5) existed in this circumstance, the Committee’s 2014 Revised Committee Decision is either neutral in effect or, for the reasons given, reinforces Neptune’s argument about the existence of an appeal in 2014. C. Did the Committee err in determining the initial and the final assessed values for 2015? 1.

The initial assessed value for 2015 [ 90 ] In the 2017 Committee Decision , the Committee carried forward the assessed value it had determined in the 2013 Committee Decision (i.e., $3,488,200) into 2015. The Committee reached this conclusion based on these findings: (a) $3,488,200 was found to be the initial assessed value for the subject property in 2014; (

b) there were no appeals concerning the property in 2014; and (

c) the circumstances affecting the property remained unchanged. [ 91 ] Neptune argues that, in light of South Hill and PA Co-Op , the Committee erred by carrying over the 2013 assessed value into 2015 because there had been an appeal from the 2015 assessment that was both filed and heard. To refresh on this point, the 2015 Committee Decision determined an initial assessed value for the Neptune property of $2,989,200. [ 92 ] SAMA, correctly in my view, concedes this point.

It agrees that the Committee’s application of s. 227 to the 2015 assessment conflicts with this Court’s decision in South Hill and, therefore, constitutes an error of law or jurisdiction. SAMA agrees the initial assessed value for 2015 should be $2,989,200. 2. The final assessed value for 2015 [ 93 ] As I have already mentioned, this appeal is limited in scope to the 2017 Committee Decision and, more particularly, to whether the Committee correctly applied s. 227 to the 2014 and 2015 assessment years.

Having concluded the 2017 Committee Decision must be set aside, that leaves the question of the final assessed value for 2015. While the parties agree the Committee erred in its determination of the initial assessed value for 2015, they disagree on whether the Committee correctly determined the final 2015 assessed value for the Neptune property. [ 94 ] The Committee began the 2017 Committee Decision by noting that the 2015 Committee Decision had increased the capitalization rate for the Neptune property to 8.5%.

It then repeated the City’s calculations at the time of the 2015 appeal using the new capitalization rate, which resulted in an assessed value of $3,188,880. This value, the Committee observed, was not disputed by Neptune. The Committee went on to state that “[W]e agree … that the final 2015 value cannot exceed the initial 2015 value” ( 2017 Committee Decision at para 42).

Cast in terms of the facts of this matter, since the revised value of $3,188,880 that had been suggested by the City did not exceed what it had identified as the initial assessed value (i.e., $3,488,200), the Committee found the final assessed value for 2015 was the figure suggested by the City: i.e., $3,188,880. [ 95 ] Neptune argues the Committee did not actually recalculate the assessed value in the 2015 Committee Decision . Instead, the Committee provided the following directions: [65] The increased cap rates will result in decreased assessment values.

The Committee would normally ask SAMA to recalculate the assessments on the basis of this ruling, allow Altus to respond, and list the new 2014 and 2015 assessments in the decision. In this instance, to avoid further delay by issuing another RFI and because we have listed the cap rates, the parties are capable of making the appropriate calculations and ensuring their accuracy. Because the new 2014 and 2015 assessments are the result of an appeal, the revised assessed values cannot exceed the original 2014 and 2015 assessments .

(Emphasis added) [ 96 ] Picking up on the last sentence of paragraph 65, it should be noted that the original assessed value for the Neptune property in 2015 was identified in paragraph 1 of the 2015 Committee Decision as $2,989,200. [ 97 ] Returning to the 2017 Committee Decision , Neptune argues that using the new capitalization rate applied to the original 2015 assessed value of $2,989,200 would achieve an assessed value of $2,635,200.

It says that value represents the final 2015 assessed value for its property based on the 2015 Committee Decision result. [ 98 ] SAMA submits that Neptune’s suggested value is incorrect. In its written argument, SAMA observes the Committee’s decision on the final 2015 assessment is not under appeal and that the final calculation is likely beyond the scope of this appeal.

SAMA underscored this point at the time of the appeal hearing. [ 99 ] As the Committee indicated in the 2017 Committee Decision , the final value for 2015 is to be determined by using the adjusted capitalization rate applied to a specific formula – {gross leasable area (GLA) x master rating (MR)}/{capitalization rate (CAP)} = assessed value (AV) – and then plugging in the rent rate associated with the 5-Best Income Quality Rating.

Using the formula suggested by the Committee, and applying it to an initial assessed value of $3,488,200 for 2015, would produce a final value of $3,188,880 (see 2017 Committee Decision at paras 37–43). [ 100 ] However, according to Neptune, since the initial 2015 value should have been $2,989,200, it stands to reason that the application of that number to the formula will yield a different final value for 2015. While Neptune may view this as a relatively easy calculation, I am not persuaded the process is quite that simple.

Therefore, recognizing the complexities of the calculation, the more appropriate order is to remit the matter to the Committee for a calculation of the final 2015 assessed value: see, for example, Kramer Ltd. v Sherwood (Rural Municipality) , 2003 SKCA 121 at para 34 , 241 Sask R 67. D. Decision not to review the 2017 Committee Decision [ 101 ] There is one final issue to address that was raised by Neptune in its factum.

After the Committee rendered the 2017 Committee Decision , Neptune applied under s. 40(5) of the MBA for a review of the 2017 Committee Decision in light of the decisions in South Hill and PA Co-Op. The Committee declined to do so. Neptune argues the Committee erred in failing to exercise its discretion under this provision because its decision was clearly based on an incorrect

interpretation of s. 227 insofar as it differed from the law subsequently expressed by this Court. [ 102 ] There are several reasons why this argument cannot succeed. First and foremost, this ground of appeal is not properly before this Court since leave to appeal on this issue was not granted (see s. 33.1 of the MBA ). For this reason alone, I decline to address this issue. VII. Conclusion [ 103 ] Given the forgoing, the 2017 Committee Decision is set aside, with the following result: (

a) the Committee erred in applying s. 227(1) of the Act to the 2014 assessment year because the 2014 assessment was under appeal; (

b) the assessed value for 2014 is $2,989,200; (

c) the Committee erred in determining the initial assessed value for 2015 was $3,188,880, when it should be $2,989,200; and (

d) calculation of the final assessed value for 2015 is remitted to the Committee, using an initial assessed value for 2015 of $2,989,200. [ 104 ] Neptune’s appeal is therefore allowed. Neptune will have its costs of this appeal under Column III. “Schwann J.A.” Schwann J.A. I concur. “Schwann J.A.” for Whitmore J.A. I concur. “Leurer J.A.” Leurer J.A.