City of Saskatoon Prospective Appellant (Appellant) v. Victory Majors Investments, 2019 SKCA 51

Court of Appeal for Saskatchewan Docket: CACV3304 Citation: Saskatoon (City) v Victory Majors Investments Corporation , 2019 SKCA 51 Date: 2019-06-10 Between: City of Saskatoon Prospective Appellant (Appellant) And Victory Majors Investments Corporation, Mah Holdings Ltd., S.B. Enterprises Ltd., McAll Holdings Inc., and Linus Holdings Ltd.

Prospective Respondents (Respondents) And Saskatchewan Asset Management Agency Non-Party Respondent Before: Tholl J.A. (in Chambers) Disposition: Application for leave allowed On Application From: AAC 2017-0118 (Lead) to AAC 2017-0122, Saskatoon Application Heard: April 29, 2019 Counsel: Alan Rankine for the Appellant Joel Hesje, Q.C. for the Respondent no one appearing for SAMA I. Introduction [ 1 ] The proposed appellant [the City] applies for leave to appeal a decision of the Assessment Appeals Committee of the Saskatchewan Municipal Board [the Committee].

It contends the Committee erred by using an incorrect standard of proof, reaching a decision in the absence of evidence, impermissibly overturning assessor discretion and applying methods which do not accord with standard appraisal methods.

Additionally, the City asserts the Committee breached its duty of procedural fairness by accepting new evidence from the proposed respondents [the Ratepayers] without allowing the City an opportunity to provide its own evidence in response and by deciding the appeal on a ground not pleaded in the notice of appeal. [ 2 ] The Ratepayers oppose the application for leave to appeal on the merits but also filed their own application seeking to have the leave application declared to be out of time and dismissed as a result.

The Ratepayers assert the appellant is barred from seeking leave because it failed to obtain an order granting leave within 30 days from the date of the Committee’s decision. [ 3 ] For the reasons that follow, I dismiss the Ratepayers’ application and grant leave to appeal to the City. II. Background [ 4 ] In the 2017 assessment cycle, the City assessed numerous retail properties in Saskatoon for the purposes of taxation. The Ratepayers own ten of the properties that had been assessed.

They objected to the assessments and appealed those assessments to the Saskatoon Board of Revision [Board], pursuant to s. 197 of The Cities Act , SS 2002, c C-11.1 : Victory Majors Investments Corporation v Saskatoon (City) , Appeal No 329-2017 (18 September 2017) Board of Revision [ Board Decision ]. The ten appeals proceeded together with one of the appeals chosen as the lead appeal. One of the appeal issues, the capitalization rate, was resolved by the parties by agreement, resulting in adjustments to the assessed values. Other than this adjustment, the Board dismissed the appeals.

The Ratepayers further appealed the Board Decision to the Committee, pursuant to s. 216 of The Cities Act . The Committee allowed all of the appeals, finding the Board erred by upholding the assessor’s decision to exclude semi-gross and gross rents in the property value analysis and erred by upholding the manner in which the assessor made adjustments to the property value for second floor rental space: Victory Majors Investments Corporation v Saskatoon (City) , AAC 2017-0118 to AAC 2017-0122 (23 August 2018) Assessment Appeals Committee [ Committee Decision ].

The Committee remitted the assessments back to the assessor with specific directions regarding these two issues. [ 5 ] The City seeks leave to appeal the whole of the Committee Decision pursuant to s. 33.1 of The Municipal Board Act , SS 1988- 89, c M-23.2 . Such an appeal is limited to a question of law or jurisdiction. The proposed issues for appeal, as set out by the City, are as follows: (

a) the Committee erred in law by using the incorrect standard of proof and reaching a decision in the absence of evidence; (

b) the Committee breached procedural fairness by (

i) upholding the Board’s decision to accept new evidence in the appellant’s 5-day response submission without allowing the City a remedy; (ii) denying the City an opportunity to enter evidence pursuant to s. 223(1) (

a) of The Cities Act ; and

(iii) deciding the appeal on a ground of appeal, which was not pleaded in the notice of appeal; (

c) the Committee erred in overturning assessor discretion in developing the model; and (

d) the Committee erred in deciding the appeal based on methods which do not accord with the standard appraisal methods pursuant to clauses 163 (f.1) and (f.3) and 165(1) of The Cities Act . III. Application For Declaration That the appellants are out of time [ 6 ] I will first address the Ratepayers’ application for a declaration that the application is out of time because, if successful, the application for leave to appeal would necessarily be dismissed on this preliminary basis. [ 7 ] The Committee delivered its decision on August 23, 2018.

The City served the Ratepayers with a notice of motion seeking to obtain leave to appeal on September 21, 2018, filing the notice of motion with the court on that same date. The notice of motion set a return date in Chambers on November 5, 2018.

The matter was subsequently adjourned and ultimately heard on April 29, 2019. [ 8 ] The provisions governing applications for leave to appeal in this matter are found in The Municipal Board Act : Other appeal 33.1 Any person affected by an order, decision or determination of the board may appeal to the Court of Appeal against the order, decision or determination on a question of law or on a question concerning the jurisdiction of the board: (

a) within: (i) 30 days after the date on which the order, decision or determination is made; or (ii) any further time, not exceeding 30 days, that a judge of the Court of Appeal may allow on an application made within 30 days after the date on which the order, decision or determination is made; and (

b) with leave of a judge of the Court of Appeal. Procedure 33.2

(1) The appellant shall, within the period provided in subclause 33.1(a)(i), serve notice of the application for leave to appeal on all parties to the matter before the board giving rise to the appeal and on the board, and the board shall, within 20 days of being served with the notice, transmit to the registrar of the Court of Appeal a copy of the order, decision or determination appealed from, duly certified by the chairperson or secretary of the board, together with all documents filed with the board in connection with the subject-matter of the appeal.

(2) An order granting leave to appeal: (

a) for the purposes of any appeal pursuant to

section 33.1 is deemed to be a notice of appeal; (

b) must state the grounds of the appeal; and (

c) must be served on the respondent or his or her solicitor within 15 days from the date of the order giving leave to appeal.

(3) Subject to the provisions of this

section and sections 33.1 and 33.3, the rules of the Court of Appeal apply, with any necessary modification, to an appeal pursuant to

section 33.1 as if it were an appeal from a judge of the Court of Queen’s Bench, but no appeal books are required. [ 9 ] Pursuant to s. 2(1) of The Municipal Board Act , the “board” as set out in s. 33.1 and s. 33.2 , for the purposes of this application, is the Committee. [ 10 ] The Ratepayers argue a proposed appellant under s. 33.1 must obtain an order granting leave to appeal within 30 days of the date of the Committee’s decision, not simply file an application for leave to appeal within that time. The Ratepayers submit s. 33.1(

a) requires a proposed appellant to appeal within 30 days or they lose their right to appeal. The Ratepayers assert a proposed appellant has only appealed once an order has been made by this Court granting leave, thereby creating the notice of appeal under s. 33.2(2). Until that order has been granted and the order deemed to be the notice of appeal, so the argument goes, a proposed appellant has not yet appealed the decision. They argue that if the order is not granted within 30 days from the date of the decision, with a maximum possible 30-day extension, the proposed appellant is out of time and leave can no longer be granted. Relying on this

interpretation, the Ratepayers submit the City is out of time to appeal and its application for leave to appeal must be dismissed. [ 11 ] In support of their position, the Ratepayers rely on Geml v Cope , 2013 SKCA 39 at paras 5–6 , 414 Sask R 43, where Herauf J.A. set out the following principles regarding the enlargement of time to appeal: [5] … These decisions establish that where there is no provision in an enactment for an enlargement of time to appeal or to apply for leave to appeal, the right to do so ends if it is not brought within the appeal or leave to appeal period.

[6] Furthermore, where an enactment has its own appeal procedure, the general provision in s. 9(6) of The Court of Appeal Act, 2000, S.S.2000, c. C-42.1, that authorizes an extension of time upon application, cannot trump the specific provisions for appeal periods permitted inan enactment. This is confirmed by s. 9(7) of The Court of Appeal Act, 2000: 9(7) Where a provision of this

section conflicts with a provision of an enactment governing an appeal, the provision of the enactmentprevails. [12] The Ratepayers could not provide any other authority for their proposition except to assert that a clear reading of the statuteleads to the

interpretation they assert. They submit s. 33.1 says “may appeal” and does not say “may apply for leave to appeal” so thesection must be given the

interpretation they propose. The Ratepayers submit tax is a time-sensitive issue and the very short timeline hasbeen imposed deliberately as a result. [13] The City submits s. 33.1 and s. 33.2 only require the leave application to be filed within the timelines set out in s. 33.1. Itasserts the

interpretation urged by the Ratepayers would result in an absurdity and effectively remove the right of appeal provided underThe Municipal Board Act. The City points out any adjustments to tax upon appeal are retroactive, removing any prejudice to a proposedrespondent from the passage of time. [14] The Ratepayers’ application requires me to interpret s. 33.1 and s. 33.2 of The Municipal Board Act. Any exercise in statutoryinterpretation must begin with the principles from Rizzo & Rizzo Shoes Ltd., Re, (SCC), [1998] 1 SCR 27.

Thoseprinciples are succinctly summarized in Ballantyne v Saskatchewan Government Insurance, 2015 SKCA 38, 457 Sask R 254: [19] The leading case with respect to statutory

interpretation is the Supreme Court of Canada’s decision in Rizzo & Rizzo Shoes Ltd., Re, (SCC), [1998] 1 S.C.R. 27 (S.C.C.) [Rizzo Shoes]. A number of principles set out in that case are applicable to the caseat hand, namely: 1. The words of

an Act are to be read in their context and in their grammatical and ordinary sense harmoniously with the scheme of theAct, its objects, and the intention of the legislature (See: Rizzo Shoes at para. 87). (See also: Saskatchewan Government Insurance v.Speir, 2009 SKCA 73 (Sask. C.A.) at para 20, (2009), 331 Sask. R. 250 (Sask. C.A.); and Acton v. Britannia (Rural Municipality) No.502, 2012 SKCA 127 (Sask. C.A.) at paras 16-17, (2012), [2013] 4 W.W.R. 213 (Sask. C.A.) [Acton]). 2. The legislature does not intend to produce absurd consequences. An

interpretation can be considered absurd if it leads to ridiculous orfrivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent or if it is incompatible with otherprovisions or with the object of the legislative enactment (See: Rizzo Shoes at para. 27). 3. Any statute characterized as conferring benefits must be interpreted in a broad and generous manner (See: Rizzo Shoes at para. 21). Thisprinciple is enshrined in s. 10 of The

Interpretation Act, 1995, SS 1995, c. I-11.2 (See: Acton at paras. 16–18). 4. Any doubt arising from difficulties of language should be resolved in favour of the claimant (See: Rizzo Shoes at para. 36). [15] In considering the provisions of s. 33.1 and s. 33.2, there are two possible

interpretations. Either a proposed appellant musthave an order granted within the time periods set out in s. 33.1 or a proposed appellant must file their leave application within the timeperiods set out in s. 33.1. I find that the provisions set the time limits for a proposed appellant to file their application for leave to appealnot to have leave granted. I say so for the following reasons. [16] The objective of s. 33.1 of The Municipal Act is to provide a right of appeal, upon the granting of leave, to a person who isaffected by an order, decision or determination of the Committee. This appeal provision is for the benefit of municipalities and propertyowners alike.

Section 33.1 confers the benefit of a right to seek leave to appeal, and to appeal if leave is granted, so it must be interpretedin a broad and generous manner. Any doubt must be resolved in favour of proposed appellants who receive the benefit of the section. [17] In order to exercise their appeal rights, a proposed appellant would have to examine the Committee’s decision, seek legaladvice if desired and determine whether to seek leave to appeal and on what basis. This takes time.

Section 33.2 sets out the process tothen be followed and directs that The Court of Appeal Rules apply. The application for leave requires a proposed appellant to serve andfile a notice of motion, with the matter to be heard in Chambers (Rule 48). The application must include a draft notice of appeal and amemorandum specifying the grounds for seeking leave, so this material must be drafted prior to serving and filing the notice of motion(Rule 49(b)). The material must be served on the opposite parties with three clear days’ notice (Rule 48(1)(c)).

The date chosen for thehearing of the application must be returnable on a regular Chambers date, which are every second and fourth Wednesday in Regina and onthe first day of each of the Court’s six annual sittings in Saskatoon (Rules 48(3) and (4)). A party intending to oppose the application isentitled to file reply material (Rules 48(5) and 48(6)). [18]

Section 33.2(1) requires a proposed appellant to serve the application material on the Committee within the time period set outin s. 33.1. The Committee then has 20 days to “transmit to the registrar of the Court of Appeal a copy of the order, decision ordetermination appealed from, duly certified by the chairperson or secretary of the board, together with all documents filed with the boardin connection with the subject-matter of the appeal” (s. 33.2(1)).

As a result, a proposed appellant must choose a return date that is least 20days after the service of the notice of motion or the record, which is absolutely required, may not be available for the parties to examine inorder to make submissions and for the Chambers’ judge to examine in order to determine the merits of the application.

While s. 33.1(a)(ii)permits an extension, up to a maximum of 30 days, such an extension can only be granted upon application, necessitating a Chambersapplication to obtain the extension. [19] An examination of these time requirements reveals it would be virtually impossible for any proposed appellant to set a returndate in Saskatoon within 30 days of the date of the decision. It would be only slightly less difficult to set a return date within 30 days inRegina. In this matter, the Committee’s decision was rendered on August 23, 2018.

The first Chambers date in Saskatoon after August 23,2018, was September 10, 2018. This date would have been too early because the Committee’s record would not yet be required to beavailable. The next Chambers date in Saskatoon was October 1, 2018, which is outside the 30 day limit asserted by the Ratepayers. Thefirst Chambers date in Regina after the expiry of 20 days from the Committee’s decision, ignoring the time required to assess the matter,prepare the materials and serve the Ratepayers and the Committee, was September 26, 2018. Again, this is outside the 30-day period.

[20] If the City wanted this matter heard in Saskatoon, which would be highly preferable given that all of the parties and theircounsel are located in Saskatoon, the City would have had to apply for an extension in Chambers on September 10, 2018. If granted, theextension would be a maximum of 30 days, thereby imposing a final deadline for the order to be granted of October 10, 2018. The onlydate available for the matter to be heard in Saskatoon would have been October 1, 2018. Under the

interpretation proposed by theRatepayers, the matter would have had to go ahead on October 1, 2018, regardless of whether the City’s counsel or the Ratepayer’scounsel was available on that date or whether the Ratepayers had filed their reply material. There would be no possibility of anadjournment for any reason. The Chambers judge would then have a maximum of 9 days to consider the application and render a decision. [21] While Rule 48(7) permits a special Chambers date to be set if the matter is urgent, the

interpretation urged by the Ratepayerswould invariably require all such applications to be treated as urgent, solely because of the timeline not because of actual urgentcircumstances. This is not an acceptable result. These are common applications that should not routinely be considered urgent. [22] The

interpretation urged by the Ratepayers bears some similarities to an

interpretation asserted unsuccessfully in Lacroix vValois, (SCC), [1990] 2 SCR 1259 [Lacroix]. In that matter, the respondent maintained the order granting leave to appealto the Supreme Court under the Divorce Act, RSC 1970, c D-8 (repealed), had been made out of time. The relevant provision in force atthe time was as follows: Appeal to Supreme Court of Canada 18.

(2) Leave to appeal under this

section may be granted within thirty days from the pronouncing of the judgment or order being appealedfrom or within such extended time as the Supreme Court of Canada or a judge thereof may, before the expiration of those thirty days, fixor allow. [23] In Lacroix, the judgment was pronounced on November 9, 1984. On December 6, 1984, the appellant was granted an extensionto January 21, 1985. The application for leave was filed on December 27, 1984, and the Supreme Court granted leave on January 31,1985.

The respondent argued that, because the provision clearly referred to “leave to appeal” being granted, not an application for leave toappeal being filed, the Supreme Court did not have jurisdiction to grant leave after January 21, 1985. In rejecting this

interpretation,Gonthier, J. referred to the

interpretation urged by the respondent as “offend[ing] common sense”, “absurd” and “unfair” because it couldextinguish a proposed appellant’s right to appeal regardless of the diligence exercised by the proposed appellant (at 1271). The SupremeCourt found the order granting leave to be retroactive to the date the leave application was filed.

While Lacroix only involved aconsideration of the time the decision was under reserve, as opposed to the application being heard after the expiry of the applicable timeperiod, it aptly illustrates the principle that a party’s right to seek leave to appeal should not be lost because of inherent time requirementsof a process that are outside of their control. [24] An

interpretation similar to the one urged by the Ratepayers was also rejected in Frost v Suffescik, 1998 ABCA 214 at para 9–11, 61 Alta LR (3d) 261. In doing so, Sulatycky J.A. stated, “The filing of the notice of application for leave to appeal must take placewithin the time limit. The day on which the court hears the application or renders its decision is irrelevant …” (at para 11). [25] I find the

interpretation proposed by the Ratepayers produces absurd consequences in that a proposed appellant would almostnever be able to comply with the 30-day deadline set out in s. 33.1, necessitating an application to extend the time in virtually every case.Even with such an extension, the timelines would remain extremely tight and not permit any flexibility for the multitude of issues thatinvariably affect a matter such as court scheduling, the availability of the necessary material, counsel’s availability and the time requiredfor the Chambers judge to consider the material and submissions and make a decision.

This is an impractical and illogical result. It isincompatible with the objective of providing any person affected by an order, decision or determination of the Committee with ameaningful ability to appeal upon the granting of leave. This cannot have been the intent of the Legislature. [26] In examining the intent of the Legislature, it is helpful to refer to the second reading speech of the Minister of MunicipalGovernment, the Honourable Carol Teichrob, explaining why s. 33.1 was enacted (Saskatchewan, Legislative Assembly, Debates andProceedings (Hansard), 23rd Leg, 1st Sess (17 April 1996) at 953 (Ms.

Teichrob)): Bill No. 46 –

An Act to amend The Municipal Board Act [Hon. Mrs. Teichrob:] Second, the Bill changes the process for handling assessment appeals where legal issues arise in the course of anappeal. The present legislation requires the Saskatchewan Municipal Board [SMB] to prepare a stated case, to refer to the Court of Appealfor this purpose. While this option is to be retained so that the SMB can seek legal guidance from the court for itself, it had previouslyresulted in significant delays to the process of resolving appeals.

Instead, parties to assessment appeals will now be able to apply directly to the Court of Appeal to consider questions of law or thejurisdiction of the SMB if the court is willing to hear them. This change should speed up the process. It will avoid the delay of waiting fora stated case to be prepared and then submitted to the court as well as the conflict position that the previous process placed the board in. Ajudge will decide directly whether an issue raised by an appellant has any merit or not. [27] As stated by Jackson, J.A., in Gary L.

Redhead Holdings Ltd. v Swift Current (Rural Municipality), 2017 SKCA 47 at para 67–69, [2017] 9 WWR 296, the intent of these changes was to place the taxing authority and taxpayers on the same footing. While one of theobjectives in pursuit of realizing on that intent was to avoid the delay caused by the need to prepare a stated case, there is no indicationthis objective was to be achieved by imposing extremely onerous, if not generally impossible, timelines on the parties.

The process was tobe speeded up but not at the cost of denying access to the Court of Appeal to the majority of parties who would be unable to have theirleave applications heard and decided with the time period set out in s. 33.1. [28] Conversely, if s. 33.1 is interpreted as only requiring the application for leave to appeal to be filed within the timelines set outin that section, all of the absurd consequences disappear. This also fits more harmoniously with s. 33.2.

A proposed appellant is notthwarted in their attempt to obtain leave to appeal by circumstances beyond their control, those circumstances being the inherent timerequired to obtain leave to appeal. Requiring the leave application to be filed within 30 days provides a reasonable amount of time for a

proposed appellant to carefully review the decision, obtain legal advice if desired, consider whether they wish to appeal and prepare andserve the proper material. This still must be done within the short time frame set out in s. 33.1, thereby avoiding undue delay. The mattercan then be heard on a timely basis once the Committee has transmitted the record and the proposed respondent has had a reasonableamount of time to instruct counsel, if desired, and prepare response material. This also results in fairness to the proposed respondent whois provided appropriate time to respond to the application.

The Chambers judge may then take the time required to properly consider all ofthe material and submissions and render a decision. [29] It is noteworthy that an examination of the cases where leave has been considered by this Court under s. 33.1 of The MunicipalAct demonstrates leave to appeal is invariably considered, and granted or refused on the merits, after the expiry of the time period set outin s. 33.1.

For recent examples see the following: City Centre Equities Inc. v Regina (City), 2016 SKCA 69 [City Centre]; Aquila HoldingsLtd. v Edenwold (Rural Municipality, 2016 SKCA 88, 484 Sask R 67 [Aquila]; Senko v LeRoy (Rural Municipality), 2017 SKCA 9[Senko]; and Weyburn (City) v Walmart Canada Corp., 2017 SKCA 110. [30] I determine s. 33.1 of The Municipal Act only requires a proposed appellant to file their application for leave to appeal withinthe timelines set out in s. 33.1.

Section 33.1 does not require an order granting leave to be made within the timelines set out in s. 33.1. [31] The Ratepayer’s application is dismissed with costs. The City did not file any material in response to this application, but wasrequired to prepare and respond, so I fix costs at $500. IV. Application for Leave to Appeal A. General principles [32] There is no general right of appeal to this court under s. 33.1 of The Municipal Board Act. A proposed appellant may onlyappeal, with leave, on questions of law or jurisdiction.

The proposed question of law or jurisdiction must emerge from the decision underappeal and the evidentiary record (Senko at para 26, and Crombie Property Holdings Ltd. v Saskatoon (City), 2016 SKCA 47 at para 10). [33] The test for granting leave to appeal in an application of this nature was discussed in City Centre (at para 20) and Aquila (atparas 6–8) and can be summarized as follows: (

a) Does the ground of appeal raise a question of law or jurisdiction? (

b) Is the proposed appeal of sufficient merit to justify granting leave to appeal? (

c) Is the proposed appeal of sufficient merit to the field of practice, the state of the law or the administration of justice generallyto warrant determination by the Court of Appeal? [34] In Saskatoon (City) v Northridge Developments Corporation, 2015 SKCA 13, 451 Sask R 265 [Northridge], Jackson, J.A. setout the following factors to consider when examining the second and third portions of this test: [55] In sum, Rothmans [2002 SKCA 119 , 227 Sask R 121] establishes the framework to consider applications for leave to appealmade pursuant to s. 33.1 of The Municipal Board Act, with minor adjustments.

In that regard, it may be helpful to restate the Rothmansframework emphasizing the core considerations of merit and importance as they relate to an application for leave to appeal under s. 33.1 ofThe 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, orthe 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 justicegenerally, 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) [35] Justice Caldwell, in Senko (at para 4), stated the onus is on the proposed appellant to show, on balance, that the considerationsfrom Northridge weigh decisively in favour of granting leave. [36] A Chambers judge must decide if he or she is sufficiently concerned about the correctness of the decision to warrant grantingleave. (Northridge at para 50, Pilot Butte (Town) v Aaron Enterprises Inc., 2015 SKCA 119 at para 7).

[37] Leave may be granted for some of the grounds of appeal put forward by a proposed appellant and refused for the othergrounds. Each proposed ground of appeal, or logical grouping of grounds, should be analyzed individually (City Centre and Senko). [38] When leave is granted for a particular issue, the Chambers judge’s language is generally circumspect because the matter isgoing to a full panel who will decide the issues. For any ground of appeal where leave is being refused, the Chambers judge oftenprovides a fuller analysis on the merits (Northridge at para 51).

As I am granting leave to appeal on each ground of appeal, my reasons fordoing so are necessarily brief and guarded. B. Standard of proof and reaching a decision in the absence of evidence [39] The first ground of appeal asserts the Committee erred in law by using the incorrect standard of proof and reaching a decisionin the absence of evidence. I do not accept the Ratepayers’ submission that the City is attempting to incorrectly convert the Committee’sfindings into errors of law (Deer Lodge Hotels Ltd. v Saskatoon (City), 2016 SKCA 119 at para 36, 407 DLR (4th) 340).

The standard ofproof required to be used by a decision-maker in the context of this matter appears to raise a question of law. Likewise, the assertion thatthe decision was reached in the absence of evidence also appears to raise a question of law. The City has properly categorized this groundof appeal. This categorization at this stage is, of course, subject to the findings of the full panel upon appeal. [40] The City submits this ground goes to the heart of the standard an appellate body must apply in determining whether there isadequate evidence on the record to overturn a decision of the Board.

The standard of proof when appealing an assessor’s decision to theBoard is on the balance of probabilities standard, with the onus on the appellant property-owner: see Corman Park (Rural Municipality) v618421 Saskatchewan Ltd., 2018 SKCA 29 at para 48, 73 MPLR (5th) 1 [Corman Park]). An appeal to the Committee is an appeal on therecord. [41] The City asserts the Committee ignored the record and failed to base its decision (regarding the model that excluded gross andsemi-gross rents) on the evidence.

Specifically, the City alleges the Committee never concluded the model chosen by the assessor, andaccepted by the Board, did not achieve equity. The City further submits the Committee erred by relying on mere assertions by theRatepayers in finding that a ratio or percentage may provide a more equitable adjustment for the second-floor factor.

Both of these errorsare stated by the City to comprise a finding that these two issues potentially affect the equity of the assessments, not actually affect theequity of the assessments, with such findings based only on assertions by the Ratepayers at the Committee and not on the evidence thatwas in front of the Board. The City points to the finding of fact from paragraph 60 of the Board Decision regarding the stratification forlocation, which was then overturned by the Committee who found the Board erred by not recognizing the City had failed to account forlocation.

The City submits this represents a finding made in the absence of evidence, and based on mere allegations, which substantiallylowers the standard of proof to be met at the Board level. The City asserts this effectively reverses the onus and puts the burden on theCity to disprove allegations. [42] The Ratepayers respond by submitting the Committee clearly understood its jurisdiction and the standard of proof: “theCommittee’s hearing is on the record. The record means all the evidence that was before the Board.

The appellants have the responsibilityto show the Board made a mistake of fact or law” (Committee Decision at para 6). They submit the Committee summarized the evidence,considered the City’s arguments regarding onus and the City’s arguments that the assessor’s model should be adopted and ultimatelyfound two errors by the Board regarding the assessor’s failure to take into account various comparability factors. [43] Turning to the determination of whether this ground is of sufficient merit to warrant the attention of the Court of Appeal, Idetermine that it is of sufficient merit.

It is not prima facie frivolous or vexatious. It is not prima facie destined to fail. The issues raised bythe City regarding the Committee’s reliance on assertions and allegations rather than on evidence and the alleged failure to reach aconclusion that the assessor’s model did not achieve equity are genuine issues based on the adjudicative framework that produced theimpugned decision and have some support in the record. [44] Lastly, this proposed ground is of sufficient importance to the field of practice and the state of the law to warrant determinationby the Court of Appeal.

It materially affects the impugned decision, it raises an unusual issue, it raises an uncertainty in the law and ittranscends the current case in its implications. [45] Leave to appeal is granted on this ground of appeal. C. Breaches of procedural fairness [46] The second ground of appeal alleges the Committee breached procedural fairness by (

a) upholding the Board’s decision to accept new evidence in the appellant’s 5-day response submission without allowing theCity a remedy; (

b) denying the City an opportunity to enter evidence pursuant to s. 223(1)(

a) of The Cities Act; and (

c) deciding the appeal on a ground of appeal, which was not pleaded in the notice of appeal. [47] The Board and Committee are required to adhere to procedural fairness (s. 203(4) of The Cities Act): see Baker v Canada(Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR 817, and Preston Crossing Properties Inc. v Saskatoon(City), 2006 SKCA 63, 279 Sask R 117 ). An issue of procedural fairness raises a question of law or jurisdiction. [48] In order to address the first two sub-grounds of this ground of appeal, a brief explanation of a portion of the process utilized bythe Board is required.

Section 200 of The Cities Act sets out timelines for the parties to provide their written material for an appeal to theBoard. As appellants before the Board, the Ratepayers were required to serve and file their written material at least 20 days before the dateset for the hearing (The Cities Act, s. 200(1) – “the 20-day material”). After receiving the Ratepayers’ 20-day material, the City wasrequired to serve and file its material at least 10 days before the date set for the hearing (The Cities Act, s. 200(2) – “the 10-day material”).

The Ratepayers were then required to serve and file any response material at least 5 days before the date set for the hearing (The CitiesAct, s. 200(2.1) – “the 5-day material”).

After receiving the Ratepayers’ 5-day material, the City decided the 5-day material raised the newissue of the applicability of semi-gross and gross rents. [49] At the hearing before the Board, the City asserted to the Board that the semi-gross and gross rent material contained in the 5-day material was new material and should have been included in the Ratepayers’ 20-day material, which would have allowed the City torespond to the semi-gross and gross rent argument in its 10-day material.

At the hearing in front of the Board, the City requested the Boardreject the portions of the 5-day material that raised this new issue or grant the City an adjournment to address the issue. The Board refusedto reject any of the 5-day material and denied the adjournment request. Despite its concerns, the City was ultimately successful in front ofthe Board. [50] The Ratepayers appealed the Board Decision to the Committee. An appeal to the Committee is an appeal on the record.

At thehearing in front of the Committee, the City raised the procedural fairness issue in relation to the 5-day material and applied, pursuant tos. 223(1)(

a) of The Cities Act, to adjourn the hearing in order to have additional evidence admitted to respond to the 5-day material. Thisapplication was denied. The new issue of the applicability of semi-gross and gross ultimately played a pivotal role in the Committee’sdecision. [51] The City submits procedural fairness was breached by the Board by allowing this new issue to be raised in the 5-day material,while depriving the City of an opportunity to respond. The City points to the wording of s. 200(2.1) of The Cities Act, which provides theright to file the 5-day material. This

section contains the phrase, “in response to written materials served on him or her pursuant tosubsection (2)” (emphasis added). It asserts the 5-day material is, therefore, akin to rebuttal evidence and should have been limited toresponding to new matters raised by the City in its 10-day material.

The City submits the Ratepayers were impermissibly allowed to splittheir case and this, ultimately, resulted in actual prejudice to the City (R v Krausse, (SCC), [1986] 2 SCR 466). [52] The City further submits the failure of the Committee to adjourn the matter and permit the City to file additional evidenceresulted in actual prejudice being created by this procedural unfairness. The City asserts the Committee treated the evidence of semi-grossand gross rents as uncontested.

The City submits the semi-gross and gross rent submissions contained in the 5-day material was onlyuncontested because of the breaches of procedural fairness at both the Board and Committee level. In the City’s view, this confirms itsposition that new material was considered that it should have had an opportunity to respond to. [53] The Ratepayers present several arguments in response.

First, they assert the 5-day material is not analogous to rebuttal evidencebecause the Ratepayers are required to provide their 20-day material in advance of receiving the City’s 10-day material, resulting in theRatepayers only receiving a complete written explanation from the assessor after having already submitted their 20-day material. TheRatepayers assert it would be unfair to limit their 5-day material in the same manner as rebuttal evidence because the Ratepayers do nothave full disclosure until after they receive the City’s 10-day material.

Additionally, the Ratepayers assert the City, as found by the Board,had ample time to review the issues and nothing new was raised in the 5-day material. With regard to the Committee’s refusal to admitnew evidence, the Ratepayers point out that the City is not arguing the Committee applied the wrong test, rather it is arguing theCommittee erred in its discretionary decision.

The Ratepayers argue the City is attempting to convert a discretionary procedural findinginto a question of law. [54] Under s. 200(3) of The Cities Act, the Board has wide discretion to accept or reject evidence, if a party does not comply with therequirements of s. 200(2.1).

Significant deference is owed to the Board and Committee in relation to process-oriented issues: Regina (City)v Gordstone Enterprises Ltd., 2003 SKCA 36 at para 4 to 5, and Northridge at para 89). [55] I note leave to appeal was recently refused by Schwann, J.A. on a similar issue: Saskatoon (City) v West Coast Reduction (14November 2017) Saskatoon CACV3074 at paras 33–40 (Sask CA). Justice Schwann refused leave because the issue was moot, noting theissue would have to wait for another day.

The issue is not moot in this matter. [56] I find the first two sub-grounds of the procedural fairness ground of appeal are of sufficient merit to warrant the attention of theCourt of Appeal. These proposed grounds are of sufficient importance to the field of practice, the state of the law and to the administrationof justice generally to warrant determination by the Court of Appeal.

The issue of the scope of the response in the 5-day material, and theprocedural fairness issues attached, transcend this particular matter, materially affect the decision and raise an uncertainty in the law. [57] Turning to the third sub-ground of the procedural fairness ground of appeal, the City alleges the Committee decided the appealon a basis not raised in the Ratepayers’ notice of appeal to the Committee. The sole ground of appeal in the Ratepayers’ notice of appealwas, “The Board erred repeatedly in its

interpretation of ‘assessor discretion’”. However, in that same notice of appeal, the supportingfacts

section of the appeal contained the following: Supporting Facts Several times in the Board of Revision decision the Board agreed with the appellant’s findings, but then said it would not touch the issue,not even take up the assessor’s offer to provide more information on it. Instead, the Board declined the offer to review information thatshould have been provided before the hearing, ignored its own finding that the appellant had the better evidence, and rationalizedmaintenance of the status quo, even when it found error by the assessor, on the basis of “assessor discretion”.

The particular issues where this occurred were: 1. Stratification of rents in the downtown core; 2. The exclusion of gross and semi-gross rents, and lease step ups, from the analysis;

3. The effect of age/condition on rent levels; 4. The effect of 2nd floor location on rent, and obvious inconsistencies with treatment of other areas. The appellant will be relying on the Sask Court of Appeal case Harvard Property Management Inc. v Saskatoon (City) , 2017 SKCA 34 , wherein the court provided a limit to assessor discretion. [ 58 ] The City submits supporting facts are not grounds of appeal.

The City asserts the Ratepayers’ sole ground of appeal did not take issue with market valuation standard, whether the model achieved equity, whether age affected the model, whether the building having an elevator was a significant factor or whether the assessor used an additive model that accounted for location through a binary variable, yet the Committee addressed all of these issues on appeal. Relying on R v Mian , 2014 SCC 54 , [2014] 2 SCR 689, the City asserts the Committee erred by addressing issues that were not properly raised on the appeal.

The City also relies on Corman Park (Rural Municipality) v 618421 Saskatchewan Ltd. , 2018 SKCA 29 , 73 MPLR (5th) 1 [ Corman Park ], where Caldwell, J.A. stated the following: [34] Key to its foundational role is the requirement that every notice of appeal set out the specific grounds on which it is alleged an error exists (s. 225(6)(a)).

What this means, for taxpayer appellants, is that their notice of appeal must allege a specific error either in the valuation or classification of the property (s. 225(1)(b)(i)) or in the preparation of or the content of the relevant assessment roll or assessment notice (s. 225(1)(b)(ii)). This may pose some difficulty for taxpayers, and particularly self-represented taxpayers, but it serves to force all prospective appellants to carefully consider whether there is a basis for their objection to an assessment before launching an appeal.

Embarking on a poorly-framed or misguided assessment appeal does not serve the interests of anyone, clogs the assessment appeals process and, ultimately, undermines the taxpayers’ sense of fairness and justice. Indeed, the Legislature has established an assessment appeal regime that, in all its aspects, reinforces the importance of properly framing the allegations of specific error at the outset.

In particular terms, s. 247(5) provides that if an appellant does not serve a notice of appeal “in accordance with this section”, the appeal is “deemed to be dismissed”. [ 59 ] The City submits the Committee impermissibly cured the Ratepayers’ vague and defective notice of appeal, relied on alleged errors and issues not plead before the Committee and breached the principle of audi alteram partem in doing so. [ 60 ] The Ratepayers respond by noting the form used by the Committee requires three columns, being issues, supporting facts and proposed solutions.

They assert describing the ground of appeal as they did, and including the detailed supporting facts, was wholly appropriate and provided notice of the issues at stake. The Ratepayers point out the two cornerstones of the Committee’s decision, the use of semi-gross and gross rents and the second-floor adjustment, were clearly set out in the supporting facts section.

For the issues decided by the Committee, which do not fit within the supporting facts section, the Ratepayers submit the Committee was entitled to consider these issues as a tribunal with expertise given that the relief granted was to send the matter back to the assessor with specific instructions. [ 61 ] I find the issue of the sufficiency of the notice of appeal filed by the Ratepayers with the Committee to be of sufficient merit to warrant the attention of the Court of Appeal. The Committee decided the appeal on a variety of grounds not specifically listed in the grounds of appeal

section and not completely contained in the supporting facts section. Given the Court’s analysis in Corman Park regarding the need for a sufficient notice of appeal, this proposed ground is of sufficient importance to the field of practice to warrant determination by the Court of Appeal. [ 62 ] Leave to appeal is granted for all three procedural fairness sub-grounds of appeal in the draft notice of appeal. D. Assessor discretion [ 63 ] The third proposed ground of appeal states the Committee erred in overturning assessor discretion in developing the model.

The City alleges the Committee relied on mere allegations and potential effects as opposed to evidence to find the City did not act reasonably in its exercise of assessor discretion. The City alleges this represents a trend of the Board and Committee to rely on mere allegations that the City did not act reasonably. In this specific matter, the City asserts the Board and Committee’s treatment of assessor discretion fundamentally undermines the principle of assessor discretion as set out in Harvard Property Management Inc. v Saskatoon (City) , 2017 SKCA 34 , at para 28 [ Harvard ].

The City submits the Committee decision failed to properly apply Harvard and gave no deference to the assessor. The City also alleges the Committee misapprehended the evidence with relation to semi-gross and gross rents further undermining the principle of assessor discretion. [ 64 ] The City offered no support for its submission that there is a trend for the Board and Committee to rely on mere assertions to find the City did not act reasonably.

This alleged general trend is not a factor I can consider on this application. [ 65 ] The Ratepayers simply refute this proposed ground by asserting the Committee’s decision was reasonable, within the Committee’s purview and authority, based on a consideration of the record and made within the confines of the appropriate jurisprudence. They also submit this does not raise a question of law or jurisdiction. [ 66 ] The issue of the appropriate deference to be paid to an assessor, and the evidence to be relied upon in evaluating the reasonableness of an assessor’s discretion raises a question of law or jurisdiction.

This ground of appeal has sufficient merit. It is not frivolous, vexatious or destined to fail. As set out in City Centre (at para 28 ), the issue has general application to municipal assessment law in Saskatchewan. Leave to appeal is granted on this ground of appeal. E.

Deviating from standard mass appraisal methods [ 67 ] The last ground of appeal is framed as an assertion the Committee erred in deciding the appeal based on methods which do not accord with the standard appraisal methods pursuant to s. 163 (f.1). s. 163 (f.3) and s. 165(1) of The Cities Act . [ 68 ] Mass appraisal methods are required to be used by cities pursuant to s. 165(1) of The Cities Act. The City asserts the Committee erred by relying on office rents in addition to retail rents to determine that semi-gross and gross rents should be included in the model,

committed errors in relation to the SAMA Board ordered passed on December 31, 2014, and mixed the concept of gross rents and net rents. All of this, it is argued, was contrary to standard appraisal methods. The City further asserts the Committee focused on individual aspects of the model and picked apart the model to determine that equity may not be achieved.

The City notes the equity of the assessment was not plead by the Ratepayers but, in any event, asserts the Committee lost focus – it is the assessment that must achieve equity in the end and not the individual aspects of the model that generated the assessment that must be equitable. The City submitted this issue is fundamental to the entire assessment system in Saskatchewan.

The City concludes by asserting the Committee has ordered the City to re- do the model in a manner that “does violence” to standard mass appraisal. [ 69 ] The Ratepayers repeat their submissions with regard to the assessor discretion ground of appeal and submit this matter was appropriately dealt with by being sent back to the assessor to be dealt with in accordance with the Market Value Assessment in Saskatchewan Handbook , ver 3 (Regina: Saskatchewan Assessment Management Agency, 2012) online: “Manuals, Handbooks & Guides”, Saskatchewan Assessment Management Agency, and the Committee’s opinion. [ 70 ] This is the most difficult proposed ground of appeal to evaluate from the standpoint of whether it raises a question of law or jurisdiction.

In Saskatoon (City) v Triovest Realty Advisors Inc. , 2015 SKCA 126 , 467 Sask R 259, Ottenbreit, J.A. analyzed whether a similar issue raised a question of law or jurisdiction. In determining it did not raise an issue of law or jurisdiction, Ottenbreit, J.A. stated the following: [18] The issue is not one solely of interference with the assessor’s discretion but, more fundamentally, with the underlying factual conclusions made by the assessor to exercise his discretion.

Those factual conclusions are the similarity of the property to special purpose properties and the comparability of the properties used in the [market adjustment factor]. These are questions of fact and, as such, no appeal to this Court is allowed on that issue. It would be an uphill battle for the City to argue that the Committee misconstrued the evidence or failed to consider the appropriate factors such that it amounts to an error of law. There is insufficient merit in this ground. [ 71 ] I share many of the same concerns for this proposed ground of appeal.

In examining this proposed ground of appeal, however, I have considered that I have granted leave with regard to the third ground of appeal. I find this fourth ground of appeal is intertwined with the third ground of appeal and it may create difficulties upon appeal if I were to not grant leave on this ground as well. It may well be that the panel hearing the appeal finds significant aspects of this ground do not represent questions of law or can be extricated from the other ground of appeal but, when considered in combination, I am unable to reject this ground of appeal on that basis.

I find this ground has sufficient merit to warrant the attention of the Court of Appeal. It materially affects the impugned decision and transcends the current case in its implications. I grant leave to appeal on this ground as well. V. Conclusion [ 72 ] The Ratepayers’ application is dismissed with costs, fixed at $500. Leave to appeal is granted to the City on all grounds set out in the draft notice of appeal, with costs of the leave application reserved to the panel hearing the appeal. “Tholl J.A.” Tholl J.A.