Wal-Mart Canada Corp. v Saskatoon (City), 2019 SKCA 20

Court of Appeal for Saskatchewan Docket: CACV3282 Citation: Wal-Mart Canada Corp. v Saskatoon (City) , 2019 SKCA 20 Date: 2019-02-19 Between: Wal-Mart Canada Corp., Canadian Tire Corporation, and Home Depot Holdings Inc.

Prospective Appellants (Appellants) And City of Saskatoon and Saskatchewan Assessment Management Agency Prospective Respondents (Respondents) Before: Jackson J.A. (in Chambers) Disposition: Application denied On Application From: AAC 2013-0182 to 2013-0186, Saskatoon Application Heard: December 3, 2018 Counsel: Kurt Wintermute for the Prospective Appellants Kim Bodnarchuk for the Prospective Respondents Jackson J.A. [ 1 ] This is an application for leave to appeal made pursuant to s. 33.1 of The Municipal Board Act , SS 1988-1989, c M-23.2.

The Applicants, Wal-Mart Canada Corp., Canadian Tire Corporation, and Home Depot Holdings Inc., seek leave to appeal a “decision” of the Assessment Appeals Committee [Committee] contained in a letter dated June 25, 2018 [June 25 Letter], with further reasons dated July 23, 2018 [July 23 Letter]. [ 2 ] In order to understand the significance of the June 25 Letter, some background is required.

In Saskatoon (City) v Wal-Mart Canada Corp ., 2018 SKCA 2 [ Wal-Mart ], the City of Saskatoon [City] appealed five Committee decisions, namely Various Owners v City of Saskatoon , AAC 2013-0182 to AAC 2013-0186 (24 April 2015) Assessment Appeals Committee Decisions (2d Qtr), to this Court.

In that series of decisions, affecting five large properties in Saskatoon (three of which are implicated in this application for leave to appeal), the Committee remitted assessments to the Assessor with specific directions [Committee’s Remittal Decisions]. [ 3 ] On the City’s appeal from those decisions, this Court dismissed the appeal and remitted the assessments to the Assessor for a re-evaluation in accordance with the Committee’s decision.

In that regard, this Court wrote the following: “The Committee has the authority, upon remittal to the Assessor, to require the Assessor to use net rents from leases commencing January 1, 2004, and to direct the Assessor to use a power curve to compare properties to ensure an accurate, fair, and equitable assessment pursuant to s. 226(1) (

c) of The Cities Act ” ( Wal-Mart at para 120 ). [ 4 ] In a June 5, 2018, letter to the Committee in compliance with this request [Assessor’s Remittal Response], the Assessor indicated she had re-assessed the subject properties in the following manner: The Committee decided that the Assessor shall assess the subject properties by:

a) using net rents for leases starting from January 1, 2004. The data will need to be time adjusted; and

b) considering how the subject properties compare to other properties of similar size with the use of a power curve for size adjustments. Notwithstanding the Assessor's concerns that the Committee's direction is contrary to assessment principles and practice, the following is the Assessor's required response to the remittal. Rents from 2004 through 2010 were used to develop a time adjustment for rents prior to 2008. Only two rents were greater than 60,000 ft 2 . These two rents were adjusted for time and inserted into the existing non-CBD Retail Model developed with 865 rents that occurred between 2008 and 2010.

A revised data set of 867 was created. A Power Curve was applied to account for size using nine rents larger than 26,500 ft 2 from the 867 rents. The Power Curve indicated a direct relationship between rent achieved and size, that is, as the size of big box properties increased, market rent also increased . (Emphasis added) [ 5 ] The effect of this decision was, in fact, an increase in the assessed values of four of the properties and a decrease in only one. (In the Committee’s Remittal Decisions, the Committee had directed that “the revised assessed values for 2013 cannot exceed the original 2013 assessments”.

Thus, only a decrease could have an effect in fact on 2013 assessments.) Needless to say, even the potential for an increase was not what the Applicants expected. [ 6 ] Following receipt of the Assessor’s Remittal Response, the Committee wrote the June 25 Letter, which is actually directed to the Assessor, with copies to others, including counsel for the Applicants. The substance of the June 25 Letter is this: It appears the City has complied with the remittal request.

Applying the elements noted above to the “Remittal Assessed Values” supplied by the City in its letter results in the following assessed values for the properties for 2013:

• AAC 2013-0186: $87,712,200; • AAC 2013-0185: $52,514,600; • AAC 2013-0184: $35,327,200; • AAC 2013-0183: $60,723,800; • AAC 2013-0182: $16,997,900. [ 7 ] Following receipt of the June 25 Letter, counsel for the Applicants wrote to the Committee, objecting to the Committee’s acceptance of the Assessor’s Remittal Response. Counsel for the Applicants alleged that the Assessor’s Remittal Response “defies the decision of the Committee and, indeed, of the Court of Appeal”.

He asked the Committee to request additional information from the Assessor, including all of the data underlying the assessment of large properties in the Assessor’s Remittal Response, and all data used to determine all adjustments made to all rents obtained between 2004 and 2012. [ 8 ] In the July 23 Letter, the Committee responded to counsel for the Applicants as follows: The Assessment Appeals Committee (Committee) of the Saskatchewan Municipal Board is empowered under the provisions of The Municipal Board Act, SS 1988-1989, c M-23.2, and further governed by the content of Saskatchewan’s municipal acts.

We do not see jurisdiction within that legislation for any further action by the Committee with respect to these appeals . We believe this position is supported in the direction contained in both Saskatoon (City) v Wal-Mart Canada Corp., 2018 SKCA 2 and in Corman Park (Rural Municipality) v 618421 Saskatchewan Ltd. , 2018 SKCA 29 . In our conclusion within the decision for AAC 2013-0186 et al, we remitted the subject properties to the Assessor for redetermination of assessed values subject to the guidance outlined in our letter of June 25, 2018.

Committee remittals are ordered with the unwritten mandate that the Assessor undertake the task in good faith and in a manner consistent with the analysis contained in our decisions (see Kolitsas Holdings Ltd., Representative Holdings Ltd., High Rise Developments Ltd., Andros Enterprises Limited and Astir Investments Limited v The City of Regina and Saskatchewan Assessment Management Agency , 2003 SKCA 74 , at paras [30] and [32] ).

Considering this general mandate and with reference to the specific order in AAC 2013-0186 et al, it appears the Assessor has complied with the remittal request (see third paragraph in our June 25 letter). (Emphasis added) [ 9 ] The Applicants now apply for leave to appeal the Committee’s decision reflected in the June 25 and July 23 Letters: 3. THAT the appeal is taken upon the following grounds: (

a) The Committee erred by: (

i) concluding that it had no jurisdiction to consider whether the remittal by the Assessor complied with the directions of the Committee and this Honourable Court, ensured that errors and omissions in the assessment roll were corrected, and that an accurate, fair and equitable assessment for the property was placed on the assessment roll; (ii) failing to consider whether the remittal by the Assessor complied with the directions of the Committee and this Honourable Court, ensured that errors and omissions in the assessment roll were corrected, and that an accurate, fair and equitable assessment for the property was placed on the assessment roll; or (iii) concluding that the remittal by the Assessor complied with the directions of the Committee and this Honourable Court, ensured that errors and omissions in the assessment roll were corrected, and that an accurate, fair and equitable assessment for the property was placed on the assessment roll; and (

b) The Committee erred by failing to provide a fair hearing to the Appellants before accepting the remittal assessment. [ 10 ] It is common ground that this application for leave to appeal must follow the framework set out in Saskatoon (City) v North Ridge Development Corporation , 2015 SKCA 13 at para 55 , 451 Sask R 265 [ North Ridge ]: [55] In sum, Rothmans establishes the framework to consider applications for leave to appeal made pursuant to s. 33.1 of The Municipal Board Act , with minor adjustments .

In that regard, it may be helpful to restate the Rothmans framework emphasizing the core considerations of merit and importance as they relate to an application for leave to appeal under s. 33.1 of The Municipal Board Act : First : Is the proposed appeal of sufficient merit to warrant the attention of the Court of Appeal? - 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?

Second : Is the proposed appeal of sufficient importance 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? - does it materially affect the impugned order or decision? - does it raise a new or controversial or unusual issue?

- does it raise a new or uncertain or unsettled point of law? - does it transcend the particular in its implications? The questions raised under each heading are intended to aid in the assessment of the considerations of sufficient merit and importance, andare not meant to be exhaustive. (All emphasis in original) [11] The Applicants attempt to demonstrate the merits of their appeal with a series of arguments centred on s. 226(1)(

c) of The CitiesAct, SS 2002, c C-11.1, which, read in context, 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. (Emphasis added) [12] The Applicants state that the Committee has the jurisdiction to determine whether the Assessor has complied with theCommittee’s Remittal Decisions.

They submit that the Committee did not forfeit its jurisdiction from the original appeals and, further, itsmandate to ensure that error is overcome and inequity disappears gives it a continuing supervisory power, which is derived from s. 226(1)(c). [13] The Applicants submit that the Assessor has taken too narrow a view of the scope of the Committee’s Remittal Decisions. Theyalso submit that they should have been able to make submissions to the Committee regarding the adequacy of the Assessor’s RemittalResponse before the June 25 and July 23 Letters were written.

In essence, they submit they were entitled to the benefit of the fair hearingrequirements established by Baker v Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR 817. [14] These paragraphs, taken from their brief, summarize their position: 40. With the greatest respect to the Committee, its view of its jurisdiction is clearly incorrect. The Committee must retain somesupervisory jurisdiction over assessors when utilizing paragraph 226(1)(

c) in order to safeguard the purpose of the provision. In virtuallyany litigation context, the idea that a tribunal loses the power to execute its function when it hands over responsibility for the outcome of acase to one of the adversarial parties is absurd. Whether or not that party is notionally obligated to be fair and consistent with the reasons,the possibility remains that it may not do so. What remedy remains to the other party, if the tribunal has no further jurisdiction? 41. The implications of such an

interpretation of the Committee’s jurisdiction are frankly disastrous for taxpayers. The Assessor alonecould interpret and apply the decision that identified error and/or inequity however it wishes, and its implementation of the decision mustbe accepted by the Committee. Ultimately, there would be no reason for the Assessor to submit its remittal response to the Committee inthe first place, because the Committee would consider itself without jurisdiction to review it. … 87. The Prospective Appellants submit that the purpose of paragraph 226(1)(

c) is to ensure errors and inequities in an assessment arecorrected, and that the fundamental objective of a remittal response is to do so. If assessors generally are permitted to craft, submit, andreceive rulings on their remittals without participation of the taxpayer in the process, there is no check or balance other than the appealboard itself on the role of the assessor. The very existence of paragraph 226(1)(

c) implies that appeal boards may rightly feel ill-equippedto intervene on the basis of the information available, nearly all of which originates from the assessor. In this light, there is no principledreason why taxpayers should be excluded from the process of analyzing the remittal response in light of the errors or inequity thatnecessarily have already been identified in the underlying appeal proceedings. That these particular taxpayers were not given anopportunity to view or make submissions on the Remittal Response prior to the Committee’s decision does concern other taxpayers. (Footnote omitted, italic emphasis in original, underline emphasis added)

[ 15 ] While the Applicants agree that the Committee cannot grant appeal rights to a party that do not exist but, in their brief, they assert “that does not mean that the Committee lacks any power to review the adequacy of the remittal” (at para 38). The Applicants envisage a broad mandate for the Committee to eliminate error and inequity, particularly having regard for s. 165(3) of The Cities Act : “The dominant and controlling factor in the assessment of property is equity”. They compare the function of the Committee to that of an appeal court. [ 16 ] For its part, the City resists these arguments.

The City submits that the Committee did in fact approve the decision of the Assessor in its June 25 Letter. As a secondary argument, the City submits that the Committee had no jurisdiction to determine whether the Assessor had complied with the Committee’s Remittal Decisions in any event and, therefore, owed no fair hearing duty.

On this second point, the City relies upon Corman Park (Rural Municipality) v 618421 Saskatchewan Ltd. , 2018 SKCA 29 , 73 MPLR (5th) 1 [ Corman Park ], and Kolitsas Holdings Ltd v Regina (City) , 2003 SKCA 74 at para 29–32 , [2004] 1 WWR 68. [ 17 ] In order to evaluate these arguments, the first step is determining what the Committee decided. In my view, on this point, the Applicants are indeed correct. The Committee’s decision was that it had no jurisdiction to consider whether the Assessor had complied with the Committee’s Remittal Decisions. This is exactly what the Committee stated in its July 23 Letter.

Any comment that it made regarding the substance of the matter was expressed in terms of appearance only, i.e., the Assessor’s decision “appears” to comply with the Committee’s Remittal Decisions. [ 18 ] Having thus interpreted the Committee’s letters in this manner, it is the Applicants’ first ground of appeal that determines the outcome of their application (repeated for clarity): (

a) The Committee erred by: (

i) concluding that it had no jurisdiction to consider whether the remittal by the Assessor complied with the directions of the Committee and this Honourable Court , ensured that errors and omissions in the assessment roll were corrected, and that an accurate, fair and equitable assessment for the property was placed on the assessment roll; (Emphasis added) [ 19 ] Specifically, in the context of applying the tests from North Ridge , the question is whether this ground of appeal is prima facie destined to fail.

In my respectful view, this aspect of the Applicants’ proposed appeal is governed by Corman Park . [ 20 ] In Corman Park , the “Committee found error, set aside the assessment and directed the assessor to assess the property afresh, but then also said ‘the new assessment will be subject to the usual notice and appeal processes’” (at para 1). The overarching question considered by the Court was “whether the last part of that order is lawful” (at para 1).

The Court found that it was not lawful as the Committee had no authority to make the order in question. [ 21 ] After an extensive analysis of the legislative framework and the controlling authorities, Caldwell J.A., for the Court, concluded as follows: [97] Consistent with this scheme, The Municipalities Act makes no provision for a new or refreshed appeal process in circumstances where the Committee has declared an assessment void and has remitted the matter to an assessor under s. 256(1)(c) .

Nor, in such circumstances, does the statute require the assessor to prepare or send out a new assessment notice, which does give rise to a refreshed appeal process in other circumstances (see ss. 208 and 219). The absence of a requirement for a new or corrected notice of assessment precludes a finding that remittal itself refreshes the existing right to appeal under s. 225(1) of The Municipalities Act .

I say this because the 30-day window for exercising that right of appeal is opened by two things only, neither of which occurs following a Committee decision, i.e., the taxpayer’s receipt of an assessment notice (s. 226(1)(a)) or the publication of the assessment roll (s. 226(1)(b)). [98] Certainly, s. 256(5) authorizes an assessor to make changes to an assessment roll that are necessary to reflect decisions of the Committee, but only if the assessment roll has not been confirmed.

Furthermore, s. 305 prohibits an assessor from amending or altering an assessment roll after it has been confirmed (unless the limited circumstances under ss. 208 and 209 have arisen).

Moreover, where the Legislature has refreshed rights of appeal against corrected or supplemental assessments, it has done so with a view to ensuring a board of revision appeal against the revised assessment is concluded within the year of assessment; that is, before the assessment roll has been confirmed. [99] The Municipalities Act simply cannot be interpreted as impliedly empowering the Committee to grant parties a refreshed right of appeal against a reassessment prepared following direction from the Committee under s. 256(1)(c).

Interpreting The Municipalities Act in that way would be contrary to the scheme of the legislation. [100] Regardless of how this is approached, it is safe to say that, if the Legislature had intended to extend rights of appeal in these circumstances, then the Legislature would have said as much.

In short, while the Committee is empowered to set aside an assessment and to remit a matter to the assessor for reassessment (s. 256(1)(c)), the Committee does not have the power to grant or refresh or renew appeal rights with respect to that reassessment whether through a notice of assessment or otherwise . (Italic emphasis in original, underline emphasis added) [ 22 ] While the Court in Corman Park was interpreting The Municipalities Act , it is quite clear that the same language exists in The Cities Act , with the following comparison of the critical

section in issue: The Cities Act The Municipalities Act Decisions Decisions 226(1) After hearing an appeal, the appeal board may: 256

(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: (

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 (

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: (

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. (

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. [ 23 ] This Court in Corman Park has confirmed the position of the Committee within the appellate hierarchy of the municipal tax assessment process. While the Applicants have made arguments that appear to be new, they are the same arguments considered and rejected by the Court in Corman Park .

In that regard, specific mention should be made of these additional paragraphs from Corman Park : [68] All of this background as to the overall scheme of the relevant legislation is, as [the Saskatchewan Assessment Management Agency] asserts, directly relevant to the question before the Court in this appeal. To some degree the relevant legislation leaves open the question of what happens after the Committee has returned a matter to an assessor for reassessment under s. 256(1)(c), because it does not expressly provide for appeal rights.

However, I find that the common, overall scheme of the relevant legislation leads to the conclusion that the Committee has no express authority to order an assessor to revise the assessment roll or to issue a new notice of assessment once the assessment roll has been confirmed . … [76] I have cited but a few cases here; the Canadian cases on this point are, frankly, far too numerous to cite, thus confirming Hall C.J.S.’s characterization in Boyko of the principle being trite law .

This jurisprudence also incontrovertibly confirms that the Committee has no jurisdiction to grant or confer a right of appeal on a taxpayer or any other party .

As the purported right of appeal is not found in The Municipalities Act or The Municipal Board Act , it does not exist at law and it cannot be created by the Committee. (Citation footnote omitted, italic emphasis in original, underline emphasis added) [ 24 ] Thus, I have concluded that the Applicants’ proposed appeal is prima facie destined to fail on the basis that the Committee’s decision, concluding it has no jurisdiction, is correct according to the prevailing authority.

That conclusion dictates the assessment of the remaining grounds of appeal. [ 25 ] The second ground of appeal concerns whether the Assessor’s Remittal Response complied with the directions of the Committee and this Court. If the Committee had no jurisdiction to evaluate the Assessor’s Remittal Response, a failure to evaluate cannot be an error of law. [ 26 ] That leaves for consideration this ground of appeal: “the Committee erred by failing to provide a fair hearing to the [Applicants] before accepting the remittal assessment”.

This ground of appeal raises the question whether the Committee was required to hold a hearing, or in other words, whether it is an error of law to fail to grant a hearing if the Committee had no authority to accept or reject the Assessor’s Remittal Response in any event.

Since I have concluded that the Applicants’ assertion that the Committee had jurisdiction is prima facie destined to fail, granting leave to appeal in relation to this question would serve no useful purpose. [ 27 ] Having concluded that the reason why these arguments are prima facie destined to fail is because they have already been decided in Corman Park , there are no arguments to be made that these grounds of appeal are of sufficient importance to engage the second arm of the test for leave to appeal. [ 28 ] Thus, I would dismiss this application for leave to appeal.

Costs are to be awarded in the usual way. [ 29 ] There is one final comment to be made.

Section 33.1 of The Municipal Board Act establishes a right of appeal , with leave, to this Court on questions of law or jurisdiction by any person “affected by an order, decision or determination” of the Committee. I question whether the June 25 and July 23 Letters are decisions of the Committee capable of being appealed to this Court. The Committee was not hearing an appeal from the Board of Revision.

In other words, the Committee did not make a decision in accordance with the relevant legislation, as such. [ 30 ] As the Court indicated in Corman Park , the appeal process envisaged by the Legislature contemplates appeals, decisions and the exercise of power in accordance with the legislation that creates boards of revision, committees and courts within the context fixed by the assessment process. Without a right of appeal from an “order, decision or determination” made by the Committee in that context, I question whether there is a matter for which leave can be granted.

This argument, however, was not developed before me such that I have not decided this application for leave to appeal on the basis of it. “Jackson J.A.” Jackson J.A.