T N C Mall Property Holdings Inc. v Moose Jaw (City), 2020 SKCA 99

Court of Appeal for Saskatchewan Docket: CACV3413 Citation: T N C Mall Property Holdings Inc. v Moose Jaw (City) , 2020 SKCA 99 Date: 2020-08-12 Between: T N C Mall Property Holdings Inc. Appellant (Respondent) And City of Moose Jaw and Saskatchewan Assessment Management Agency Respondents (Appellants) Before: Richards C.J.S., Jackson and Kalmakoff JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Chief Justice Richards In concurrence: The Honourable Madam Justice Jackson The Honourable Mr.

Justice Kalmakoff On appeal from: 2019 SKMB 11 , Regina Appeal heard: May 7, 2020 Counsel: Leonard Andrychuk, Q.C., and Allison Graham for the Appellant Amy Groothuis for the Respondent, City of Moose Jaw Richards C.J.S. I. Introduction [ 1 ] T N C Mall Property Holdings Inc. [TNC] owns a shopping mall [Mall] in the City of Moose Jaw. The assessed value of the Mall nearly doubled in the 2017 assessment year and TNC successfully appealed that assessment to the Board of Revision. The Board reduced the assessment back to its 2016 level.

This led the City to launch an appeal to the Assessment Appeals Committee of the Saskatchewan Municipal Board [Committee]. The Committee reinstated the original assessment. [ 2 ] TNC has been given leave to appeal to this Court on four grounds. They raise questions about whether the Committee: (

a) applied the wrong standard of review; (

b) failed to correctly deal with the “market valuation standard” concept as found in s. 163 (f.1) of The Cities Act , SS 2002, c C-11.1 [ Act ]; (

c) improperly dealt with the notion of “equity” in s. 165(5) of the Act ; and (

d) misinterpreted the powers of a board of revision. [ 3 ] As explained below, I conclude that the Committee erred to the extent of applying the wrong test for equity. Its decision must be set aside and the assessment of the Mall referred back to it so that it can apply the proper test. II. background A. Key assessment principles and methodology [ 4 ] The Act provides that assessments are to be conducted using only mass appraisal.

As defined by s. 163 (f.3), “mass appraisal” means: (f.3) … the process of preparing assessments for a group of properties as of the base date using standard appraisal methods, employing common data and allowing for statistical testing[.] [ 5 ] The dominant and controlling factor in the assessment of property is equity (s. 165(3)). For non-regulated properties, such as the Mall, equity is achieved by “applying the market valuation standard so that assessments bear a fair and just proportion to the market value of similar properties as of the applicable base date” (s. 165(5)).

The “market valuation standard” is defined as follows in s. 163(f.1): (f.1) “market valuation standard” means the standard achieved when the assessed value of property: (

i) is prepared using mass appraisal; (ii) is an estimate of the market value of the estate in fee simple in the property; (iii) reflects typical market conditions for similar properties; and (iv) meets quality assurance standards established by order of the agency[.] [ 6 ] The Saskatchewan Assessment Management Agency [SAMA] Shopping Centre Valuation Guide notes three different approaches for the valuation of shopping centres: (

a) the sales comparison approach; (

b) the income approach; and (

c) the cost approach. [ 7 ] The income approach, on which this appeal is centred, involves the calculation of the net operating income for the property in question and then capitalizing that income to obtain a present value. Thus, for example, if the net operating income of a property is

$100,000 per year and the applicable capitalization rate is 10 percent, the assessed value of the property will be $1,000,000 ($100,000 / .10 = $1,000,000). The Valuation Guide explains that the capitalization rate for a property is determined by way of the analysis of capitalization rates “demonstrated in the sales of similar shopping centres”. In this case, the relevant sales were those that occurred from January 1, 2011 to December 31, 2014. [ 8 ] Assessed values are determined as of a specified “base date” (s.165(2)). For the 2017 assessment year, that date was January 1, 2015. B.

The assessment of the Mall [ 9 ] The Mall is a 340,702 square foot enclosed shopping centre located at the north end of Main Street in Moose Jaw. [ 10 ] The assessed value of the Mall for the 2016 taxation year was $11,625,300. For 2017, SAMA assessed the Mall at a value of $21,089,000. [ 11 ] In conducting the 2017 assessment, SAMA found that there had been only one Saskatchewan enclosed mall sale in the applicable January 1, 2011 to December 31, 2014 time frame. This was the sale of a mall in Estevan.

The statistical analysis required to generate a capitalization rate was not possible with only one sale and, as a result, SAMA applied the capitalization rate of 6.61 percent that had been developed for general commercial property in Moose Jaw. This rate had been derived from the sales of 39 Moose Jaw income- producing properties of various types. These included warehouses, offices, restaurants and other retail properties including daycares and service garages.

The application of that capitalization rate, a rate substantially lower than the one that had been employed in 2016, generated the $21,089,000 assessed value placed on the Mall. III. the board of revision decision [ 12 ] TNC appealed the 2017 assessment to the Board on several grounds. One of them was that the capitalization rate of 6.61 percent used by SAMA was too high and was invalid because it had been derived from the sale of properties that were not comparable to the Mall.

TNC contended that, without comparability, the assessment did not meet the market valuation standard or achieve equity as per s. 165(5) of the Act . TNC suggested that two mall sales from the previous assessment cycle (one in Weyburn and one in Humboldt) could have been used, with time adjustments, to determine an appropriate capitalization rate. [ 13 ] The Board found that the large increase in the assessed value of the Mall should have raised concerns for SAMA and that the increase in assessed value was “troubling”.

It framed the question before it as being whether it was appropriate for SAMA to have applied the general commercial property capitalization rate for the City to the Mall, an enclosed shopping centre. [ 14 ] The Board referred to Harvard Property Management Inc. v Saskatoon (City) , 2017 SKCA 34 [ Harvard ], for the proposition that statistical testing is not a substitute for comparability. It found that the Mall was not comparable to the 39 properties used to generate the general commercial property capitalization rate.

The Board concluded, as a result, that SAMA had erred in applying the general rate to the Mall because, by using non-comparable properties to calculate that rate, it had failed to meet the market valuation standard which, as noted above, refers as per s. 163 (f.1)(iii) to market conditions for “similar properties”. [ 15 ] The Board requested SAMA to provide an assessed value for the Mall using the cost approach to valuation. SAMA advised that this approach generated an assessed value of $30,667,100.

Neither the Board nor SAMA nor, of course, TNC was interested in going in that direction. [ 16 ] The Board then asked SAMA to provide it with a capitalization rate based on the 2008 sales of malls in Weyburn and Humboldt, time adjusted, and the 2014 sale of the mall in Estevan. SAMA’s lawyer responded by writing that “these requests appear to go well beyond the mandate and authority of a board of revision”.

His letter said, “If the Board intends its requests to be directions to the assessor, then I would ask under what authority the direction is made?” [ 17 ] The Board took this as a refusal by SAMA to provide the requested calculation. It then concluded that “since no evidence was tendered to allow the Board to change the assessment, the Board orders that the 2017 assessment shall be the same as the 2016 assessment”. Accordingly, it set the assessed value of the Mall at $11,625,300. IV. the committee decision [ 18 ] SAMA appealed to the Committee.

In brief reasons, it held that the Board had erred by ordering the assessed value from a previous assessment cycle to be placed on the Mall. The Committee saw the Board’s decision in this regard as involving a failure to achieve equity. [ 19 ] The Committee noted that SAMA had been able to identify only one mall sale within the relevant time frame and that this was not enough to develop a capitalization rate for malls. It said the general commercial property capitalization rate had been properly determined and that equity had been obtained by applying it to the Mall.

The Committee overturned the decision of the Board and reinstated the assessment of $21,089,000. V. issues

[ 20 ] TNC was granted leave to appeal from the Committee’s decision to this Court on the following questions: (

a) Did the Committee select the correct standard of review to apply to the findings of fact of a board of revision and did it correctly apply that standard in its review of the facts as found by the board of revision? (

b) Did the Committee correctly interpret and apply the “market valuation standard” set out under s. 163 (f.1) of The Cities Act ? (

c) Did the Committee correctly interpret and apply s. 165(5) of The Cities Act when it determined equity had been achieved in the assessment of the non-regulated property in question? (

d) Did the Committee correctly interpret the “mass appraisal process” ( The Cities Act , s. 163 (f.3)) and the statutory powers of a board of revision when it concluded that a board of revision cannot order an assessor to use a property value established in an earlier assessment cycle? VI. analysis A.

Did the Committee apply the correct standard of review in relation to the Board’s findings of fact? [ 21 ] As indicated above, the first question on which TNC was granted leave to appeal is set out below: Did the Committee select the correct standard of review to apply to the findings of fact of a board of revision and did it correctly apply that standard in its review of the facts as found by the board of revision? [ 22 ] In its decision, the Committee addressed the standard of review issue by writing as follows: [8] Based on the Court of Appeal’s direction in City Centre Equities Inc. v Regina (City) , 2018 SKCA 43 (paras [98] – [101] ), we review the Board’s findings of fact, and of mixed fact and law on a reasonableness standard.

If the findings of fact are supported by the evidence or are not otherwise unreasonable, this Committee will not interfere with the Board’s factual conclusions. [ 23 ] TNC acknowledges that this is a proper statement of the governing standard of review. However, it contends the Committee failed to apply that standard. In this regard, TNC refers to the Board’s express finding, at paragraph 48 of its decision, that “[the Mall] is not comparable to the 39 sale properties used to develop the general commercial property CAP rate” and emphasizes that the Committee made no mention of whether this finding was reasonable.

TNC suggests that the Committee’s ultimate decision must be taken to involve a measure of deference to SAMA’s sense of comparability and hence to mean that the Committee ignored the Board’s finding about that issue. [ 24 ] This argument is not persuasive. The Committee did not take issue with, or disregard, the Board’s finding about the comparability of the Mall and the properties used to determine the general commercial property capitalization rate.

Its decision must be understood as saying that, because the Estevan sale was the only enclosed mall sale in the relevant time period and because the calculation of a capitalization rate based on enclosed mall sales was therefore not possible, SAMA made no reversible error in applying the general commercial property capitalization rate even though the properties used to calculate that rate were not directly comparable to the Mall.

This is something quite different than saying the Mall is in fact comparable to the properties used to derive the general commercial property capitalization rate. [ 25 ] As a bottom line, I am unable to find that the Committee failed to apply the correct standard of review in relation to the factual question of whether the Mall was comparable to the properties used to derive the 6.61 percent capitalization rate used in its valuation. B.

Did the Committee misinterpret and misapply the “market valuation standard” concept? [ 26 ] The second question on which TNC was granted leave to appeal is as follows: Did the Committee correctly interpret and apply the “market valuation standard” set out under s. 163 (f.1) of The Cities Act ? [ 27 ] The market valuation standard is defined in s. 163 (f.1) of the Act . As will be recalled, that definition puts the notion of “similar properties” near the heart of the assessment analysis for non-regulated properties because: (

a) equity is the dominant and controlling factor in assessment of property (s. 165(3)); (

b) equity for non-regulated properties involves applying the market valuation standard so that assessments bear a fair and just proportion to the market value of “similar properties” (s. 165(5)); and (

c) the market valuation standard is the standard achieved when assessed value, among other things, reflects typical market conditions for “similar properties” (s. 163(f.1) (iii)). [ 28 ] TNC argues that the Committee made three legal missteps in its approach to the market valuation standard. To begin, TNC says the Committee relied solely on statistical testing to find comparability between the Mall and the properties used to generate the general commercial property capitalization rate that SAMA applied to the Mall.

In this regard, TNC relies on Harvard , where, on behalf of the Court, I wrote as follows: [24] All of this makes it quite clear that statistical testing is not a substitute for comparability and does not trump or displace the need for comparability. It is possible, for example, that an assessor could include a warehouse and a hotel with a group of retail properties and still produce a property grouping that generates statistically acceptable results. There could be no suggestion, however, that this would be an acceptable stratification.

(Emphasis in original) [ 29 ] In my view, TNC’s criticism of the Committee’s approach is not valid. In Harvard , the Committee failed to come to grips with the fact that two of the properties used to determine the capitalization rate were not comparable to the property being assessed. That was the reason the Court remitted the assessment to the Committee for reconsideration. The situation in this case is different.

Although the Committee did not canvass the issue in any depth, it is nonetheless clear that it found there was only one sale of a comparable property in the applicable time frame (at para 24) and that it was not possible to perform the necessary time adjustment to the two additional sales from outside the time frame that had been identified by TNC (at para 12). This is what led the Committee to endorse SAMA’s approach. In other words, the Committee did not simply default to statistical testing and ignore the question of comparability or confuse statistical testing results with comparability.

It looked first at the issue of comparability and only accepted SAMA’s approach because there were not enough sales of closely comparable properties, i.e., enclosed malls, to calculate a capitalization rate using such sales.

The Committee did not, at any point, say or suggest that the properties used to calculate the 6.61 percent capitalization rate were comparable or closely comparable to the Mall because of the results of statistical analysis. [ 30 ] TNC’s second line of attack concerning the market valuation standard is that the Committee erroneously deferred to SAMA’s discretion when it upheld the application of the general commercial property capitalization rate to the Mall.

Again, TNC relies on Harvard and, in particular, on the following passage from that decision: [28] As these authorities indicate, Boards of Revision and the Committee must show an appropriate level of deference to the decisions made by an assessor in relation to the question of whether properties are, or are not, sufficiently comparable to be used in an assessment analysis. However, that does not mean an assessor has carte blanche in these realms. He or she must act reasonably and must act by taking into account factors bearing on comparability.

As the Court observed in 959630 Alberta Inc ., immediately after the paragraph quoted above, “However, if the Assessor erred in the way in which he exercised the discretion reposed in all assessors by the Act and the Manual, then an appellate body may intervene to address that error in law”. Thus, an assessor may not ignore the question of comparability, or attempt to meet concerns about comparability, by doing no more than pointing to the results of statistical analyses. (Emphasis added) [ 31 ] I am not persuaded by this aspect of TNC’s submission either.

As just noted, SAMA did not “ignore” the question of comparability and rely solely on statistical analyses. Rather, in dealing with the reality that there was only one sale of a comparable mall in the relevant time period and that a single sale is not sufficient to calculate a capitalization rate, it turned to the general commercial property capitalization rate.

It took the same approach to mall assessments in Yorkton, Weyburn and Estevan as well. [ 32 ] There has never been any suggestion by SAMA that the properties used to calculate the general commercial property capitalization rate are closely comparable to the Mall in a bricks and mortar sense. The Mall is a 340,702 square foot enclosed shopping centre. The 39 sales used to generate the general commercial property capitalization rate included 20 warehouses, 8 offices, 3 restaurants and various other retail properties.

TNC underlines that these properties sell in local, rather than national, markets and have different risk profiles than malls. SAMA acknowledges all of this. However, the question that SAMA faced was rather obvious: what was it to do when there were not enough sales of enclosed malls to calculate a capitalization rate for the Mall?

SAMA answered that question by turning to the general commercial property capitalization rate. [ 33 ] In its submission to the Board, TNC argued that SAMA should have or could have time-adjusted the sales of the Weyburn and Humboldt malls and used them, along with the sale of the Estevan mall, to calculate a capitalization rate. However, SAMA’s evidence, as interpreted by the Committee, established that such an adjustment was not statistically possible. The Committee’s finding in that regard has not been appealed.

It stands, therefore, as a full response to TNC’s argument about alternate approaches to the development of a capitalization rate. [ 34 ] In this Court, TNC asks, as I understand it, why SAMA did not simply use the capitalization rate of 9.48 percent that characterized the sale of the Estevan mall, effectively suggesting this rate would be applicable to all enclosed malls. This argument ignores the Committee’s finding about the impossibility of doing the necessary statistical testing if only one sale is used.

Further, as SAMA points out, the 9.48 percent figure for the Estevan mall very closely aligns with the Estevan general commercial capitalization rate of 9.84 percent. SAMA suggests that this confirms the logic of using the 6.61 percent Moose Jaw general commercial capitalization rate to value the Mall.

In other words, SAMA has a fully reasonable basis for resisting the suggestion that the Estevan mall capitalization rate should have been imported to Moose Jaw and applied to the Mall. [ 35 ] On a related line of thinking, TNC suggested in oral argument that the kind of statistical testing of the capitalization rate referred to by the Committee was not required as part of the assessment process. I am reluctant to try to deal with the merits of that contention because it was not developed in depth and because it was not part of TNC’s submission to either the Board or the Committee.

In my view, it is the sort of matter that should considered by this Court only after it has been canvassed by the Committee working with the benefit of a full argument and such an evidentiary record as may be appropriate. [ 36 ] In this Court, TNC also stresses in more general terms that SAMA was responsible for finding an assessment option that involved similar properties and it suggests SAMA did not properly or fully explore the (unidentified) options in this regard. To use counsel’s words: “We don’t know the full art of the possible”.

It is certainly correct that it was SAMA’s responsibility to generate a valid assessment, not TNC’s. See: Estevan Coal Corporation v Estevan (Rural Municipality No. 5) , 2000 SKCA 82 at paras 46-48 , [2000] 8 WWR 474 [ Estevan Coal ]. But, in my respectful view, that does not take TNC particularly far in the context of this case. TNC bore the burden of establishing an error in the assessment and, in the circumstances here, that meant showing SAMA had failed to pursue a viable alternative option for assessing the Mall—if there were no alternatives, there was no error.

TNC had a full opportunity to cross-examine the SAMA officials who testified at the Board hearing and to thereby explore and flesh out the nature of the various approaches to the assessment of the Mall that might have been open to SAMA. TNC also had the opportunity to put forward its own evidence, expert or otherwise, in this regard. The fact that TNC did not take full or proper advantage of these opportunities at the Board hearing does not mean that the Committee erred by endorsing the application of the 6.61 percent capitalization rate to the Mall. [ 37 ] Could SAMA have used an alternate methodology?

Presumably yes. Perhaps it could have excluded the smallest properties

from the group of 39 retail property sales and recalculated the capitalization rate on that basis. Perhaps it could have excluded warehousesfrom the group of 39 properties. There are obviously many variations on the theme. However, that is not the point. Assessors arepermitted to, and must, exercise a measure of discretion. [38] SAMA, of course, does not enjoy a carte blanche with respect to the exercise of that discretion.

But, discretion is nonetheless“an important and necessary aspect of the assessment process” (Saskatoon (City) v Walmart Canada Corp., 2018 SKCA 2 at para 116).SAMA, like all assessors, must be shown “an appropriate level of deference” (Harvard at para 28). Here, the record indicates that SAMAproceeded in a way that took into account the requirements of the Act and attempted to satisfy them as much as a very unusual situationallowed.

Thus, in the particular circumstances of this case, the Committee made no error of law by showing a measure of deference toSAMA’s decision about the capitalization rate and in accepting the approach that SAMA had taken to solve the assessment problem that itfaced. [39] TNC’s third and final submission about the market valuation standard is that, by way of its reasoning, the Committee erred inlaw by implicitly finding that the level of comparability required between and among properties by the market valuation standard dependson how much sales information is available.

TNC says that the Act requires comparability – nothing more and nothing less – in allsituations. [40] In considering this vein of TNC’s argument, it is necessary to begin by noting that, by definition, comparability is a relativeconcept. Properties are rarely “comparable” in the sense of being identical. In almost all circumstances, they are simply more or lesssimilar with reference to a variety of relevant characteristics including use, building size, construction style, condition, site size, locationand so forth. See: Harvard at para 23.

TNC’s insistence on the necessity of properties being somehow strictly comparable, full stop,ignores this fundamental reality. Even the properties that it wants to work into the capitalization rate calculation differ from the Mall inrelatively major ways. For example, the Weyburn mall is constructed with a four-story office tower at one end, where an anchor storewould typically be located, and is substantially smaller than the Mall.

The Humboldt mall is also significantly smaller – the entirestructure is approximately half the size of the Mall’s smallest anchor store. [41] In my view, the Committee did not imply that the meaning of the term “similar properties”, as found in the Act, somehowchanges with the amount of sales data available to an assessor.

In sustaining SAMA’s approach to the capitalization rate issue, theCommittee did no more than recognize the unavoidable practical reality that, if there are no sales of closely comparable properties to usein calculating a capitalization rate, an assessor must find another option by using other properties. To repeat, SAMA faced a practicaldilemma: there were not enough sales of enclosed malls to allow it to calculate a capitalization rate using only such sales. At the sametime, it could not decline to assess the Mall or walk away from the assessment challenge it faced.

No one, including TNC, suggests thiswas an option.

As a result, SAMA had to find a way forward and it did so by applying the general commercial property capitalization rate.That rate was calculated by reference to the sales of properties that were obviously different than the Mall but, at the same time, that hadmore in common with it and were more comparable to it than properties such as those of a residential, recreational or industrial character.Significantly, TNC does not suggest that there were other kinds of non-mall properties that SAMA could or should have used to determinea capitalization rate for the Mall. [42] It follows from all of this that I am not convinced that the Committee somehow misapprehended the meaning of thecomparability concept. [43] In reaching this conclusion, I do not, in any way, resile from what the Court said in Harvard.

In developing a capitalization rate,an assessor must begin by selecting the properties to be considered in the analysis and the selection process must be conducted with resortto factors properly bearing on comparability. Only when a group of comparable properties has been identified does statistical analysiscome into play to determine the quality of the stratifications in issue. An assessor may not ignore the question of comparability by simplypointing to the results of statistical analyses. But, all of that said, the work of an assessor is conditioned by the factual realities of theassessment problem in issue.

If there are no directly comparable properties, then there are no directly comparable properties. In thatsituation, the assessor will of necessity have to move forward using less comparable properties and in a way that respects the requirementsof the Act to the extent reasonably possible. C.

Did the Committee apply the wrong equity test? [44] The third question on which TNC was granted leave asks this: Did the Committee correctly interpret and apply s. 165(5) of The Cities Act when it determined equity had been achieved in theassessment of the non-regulated property in question? [45] As noted above, s. 165(3) of the Act provides that “[t]he dominant and controlling factor in the assessment of property isequity”. TNC submits that the Committee applied the wrong test for equity and thereby erred in law.

It says this error is apparent on theface of the key paragraph in the Committee’s analysis of the capitalization rate issue: [28] We find the consistent application of the model to each of the comparable enclosed shopping centres achieves equity betweenthose properties. We find the application of a local municipal Cap Rate to each of the enclosed shopping centres has been calculated andapplied appropriately within each of the cities. Thus, equity has been attained within the appropriate jurisdictions. [46] I agree with TNC on this point.

A previous iteration of the Act provided that equity was established where the directed methodof assessment was applied “uniformly and fairly throughout the assessment roll”. See, for example: Regina (City) v Laing PropertyCorporation (1994), (SK CA), [1995] 3 WWR 551 (WL) (Sask CA) at paras 56-57. [47] However, that is no longer the governing standard for non-regulated properties like the Mall. Sections 165(4) and (5) now readas follows:

(4) Equity in regulated property assessments is achieved by applying the regulated property assessment valuation standard uniformly andfairly.

(5) Equity in non-regulated property assessments is achieved by applying the market valuation standard so that the assessments bear a fair and just proportion to the market value of similar properties as of the applicable base date.

As explained in Imperial Oil Limited v Regina (City) , 2016 SKCA 107 at para 9 , 408 DLR (4th) 46, the achievement of equity under s. 165(4) for regulated properties is a matter of process whereas equity under s. 165(5) for non-regulated properties is a matter of result . [ 48 ] Our only indication of how the Committee approached or analysed the issue of equity is what it wrote in its decision.

Thus, when the Committee said that “the consistent application of the model to each of the comparable enclosed shopping centres achieves equity between those properties”, I must conclude that it erred in law by failing to use the test for equity that is mandated by the Act as being applicable to the assessment of the Mall. D.

Did the Committee err with respect to the Board’s order concerning assessments from earlier cycles? [ 49 ] The final question on which TNC was granted leave to appeal is set out below: Did the Committee correctly interpret the “mass appraisal process” ( The Cities Act , s. 163 (f.3)) and the statutory powers of a board of revision when it concluded that a board of revision cannot order an assessor to use a property value established in an earlier assessment cycle? [ 50 ] In turning to this issue, it is perhaps useful to repeat the relevant storyline.

The Board concluded that the assessment performed by SAMA did not satisfy the market valuation standard and then requested SAMA to calculate a capitalization rate for the Mall based on the time-adjusted sales of the Weyburn and Humboldt malls in 2008 and the sale of the Estevan mall in 2014. SAMA did not provide the Board with that information. The Board then ordered that, because no evidence had been tendered to allow it to change the assessment, the assessment should remain at the 2016 level. [ 51 ] The Committee found this result to involve an error of law.

It wrote as follows: [10] The Board made a mistake of law when it ordered the assessed value from a previous assessment cycle be placed on the subject property. The Board order does not comply with mass appraisal. Equity is not achieved when a property is assessed on a different assessment cycle. The decision created inequity between the other malls included in the enclosed shopping centre model as well as inequity between other commercial properties within the City.

This order does not uphold the Market Valuation Standard (MVS). … [13] The Board decision failed to meet the legislated requirement to maintain equity. We will review the record of the Board and determine what the Board should have done. (Emphasis added) [ 52 ] TNC says the Committee erred in making this finding. In its view, the Committee ignored what TNC calls three fundamental features of the property tax assessment regime: (

a) assessors are statutorily obligated to ensure fair and equitable taxation; (

b) assessors possess the information and skill required to prepare property tax assessments; and (

c) where an assessor does not provide a board of revision with the information necessary to prepare an assessment, the board of revision’s remedial options are limited and must be exercised on the information before it. TNC stresses that, when a board of revision finds an error in an assessment, it must have some recourse if the assessor does not provide it with requested calculations or necessary evidence.

It says that, when SAMA refused to provide the Board with the information required to remedy the problem with the assessment of the Mall, the Board had only one option and that was to use the 2016 assessed value. [ 53 ] The starting point for evaluating this argument is s. 210(1) of the Act . It sets out the powers of a board of revision in the following terms: 210(1) After hearing an appeal, a board of revision or, if the appeal is heard by a panel, the panel may, as the circumstances require and as the board or panel considers just and expedient: (

a) confirm the assessment; or (

b) change the assessment and direct a revision of the assessment roll accordingly: (

i) subject to subsection (3), by increasing or decreasing the assessment of the subject property; (ii) by changing the liability to taxation or the classification of the subject property; or (iii) by changing both the assessed value of the subject property and its liability to taxation or its classification. [ 54 ] Sections 210(1.1) to (3) go on to impose three limitations on how a board of revision may use the authority conferred by s. 210(1):

(1.1) Notwithstanding subsection (1), a non-regulated property assessment shall not be varied on appeal using single property appraisal techniques.

(2) A board of revision or panel shall not exercise a power pursuant to subsection (1) except as the result of an appeal.

(3) Notwithstanding subsection (1), an assessment shall not be varied on appeal if equity has been achieved with similar properties.

None of these provisions are put directly in issue by the question on which TNC has been granted leave to appeal. [ 55 ] A board of revision, unlike the Committee as per s. 226(1) (

c) of the Act , is given no express authority to remit assessments to the assessor. It must, as prescribed by s. 210(1) , either confirm the assessment or change it. What, then, is the situation where a board of revision identifies an assessment error but the assessor has not provided it with the information needed to remedy the error or declines to provide that information? In my view, the answer is straightforward.

So long as the information in issue is something that the board of revision is entitled to request, the error cannot be allowed to stand because the assessor fails or refuses to provide it. [ 56 ] This, in general terms, was the issue addressed in Estevan Coal some 20 years ago.

There, in vigorously rejecting an argument by SAMA that the taxpayers were under an obligation to adduce the evidence necessary to establish the correct assessment, Sherstobitoff J.A. said this on behalf of the Court: [48] Quite aside from the almost impossible burden this would put on an ordinary taxpayer in a case such as this, it is a position which is unacceptable for any assessor to take.

It was the duty of the assessor to collect the necessary data to calculate a market adjustment factor, to calculate it, and to arrive at an assessment utilizing it, and it is perverse for it to say that its own failure to perform that duty casts some sort of obligation on the taxpayer to carry out that duty before the taxpayer should have relief.

Neither the legislation, nor the decisions of this Court will permit, or were intended to permit, an assessor to avoid its obligation to assess according to the assessment manual, or to permit the assessor to benefit from its own default, so as to impose an assessment on a taxpayer not made in accord with the manual. [ 57 ] Essentially the same logic applies here.

It is unclear why SAMA, a public agency established by statute and directed to “establish and diligently maintain assessed values in a manner consistent with and in accordance with the Act ” would think it appropriate to deny a board of revision information necessary to correct an assessment error. See: The Assessment Management Agency Act , SS 1886, c A-28.1, s. 12(1) (b). After all, it is the board (not SAMA) that is charged with the responsibility of confirming on appeal that an assessment complies with the demands of the Act .

SAMA cannot frustrate a board’s ability to discharge that mandate by denying access to necessary information. [ 58 ] There are limits, of course, to SAMA’s obligations in this regard. For example and without attempting to lay down a complete set of hard and fast rules, SAMA cannot be expected to provide (

a) information that does not exist or analysis that would be impossible to generate, or (

b) information that can be collected or analysis that can be conducted only by way of some extraordinary or unreasonable effort or expense on its part. [ 59 ] However, that was not the situation here. SAMA did not respond to the Board’s request for a capitalization rate calculated on the basis of the Weyburn, Estevan and Humboldt mall sales by saying that it could not prepare such information or that it would be difficult to do so or that satisfying the Board’s request would somehow involve an unreasonable expenditure of time or resources.

Rather, SAMA simply suggested that the Board did not have the authority to make such a request. [ 60 ] At the level of general principle, therefore, I agree with TNC that the Committee erred to the extent it can be taken to have said that, as a broad rule, a board of revision has no authority to ask an assessor for the information necessary to correct an error in an assessment. [ 61 ] That said, the Committee’s complaint about what the Board decided was not framed in this sort of jurisdictional way.

Rather, no doubt referencing the notion that, as per s. 163 (f.3) of the Act , “mass appraisal” involves preparing assessments “as of the base date”, the Committee found the Board had erred by ordering the use of an assessed value from a previous assessment cycle. That assessed value, of course, engaged a base date that was not applicable to 2017 assessments. [ 62 ] In my opinion, the Committee’s line of analysis was misdirected. As I read the Board’s decision, it did not say the base date for the 2017 taxation year should be ignored and that the Mall should be assessed as of something other than that base date.

Indeed, it tried to ensure that the base date for 2017 assessments was respected. I refer here to the fact that the Board asked SAMA, in its November 20, 2017 memo, to adjust the Weyburn and Humboldt mall sales “for the 2015 base date”, i.e., for the base date used for the 2017 taxation year. The Board decided to use the 2016 assessed value of the Mall to establish its 2017 value only when SAMA declined to provide the information that it had requested and it had no other valuation options. In other words, the Board did assess the value of the Mall as of the proper base date.

The fact that, in the circumstances at hand, it used the 2016 value of the Mall does not mean that it failed to follow the requirements of the Act . [ 63 ] Perhaps another way to look at this point is by referring back to the general principles discussed above. Subject to what was said in paragraph 59, SAMA cannot stand in the way of a board of revision’s attempt to correct an assessment error by denying the board access to the information necessary to make the correction in issue.

It follows that SAMA can have no ground for complaint when, as here, it does no more than challenge a board’s general authority to ask for additional information and the board reacts to its refusal to provide information by opting, on a reasonable basis, to assess the property at the same value as it was assessed in the previous year.

Preventing a board of revision from taking that sort of step would allow SAMA to achieve a result indirectly that it cannot achieve directly, i.e., to deny a board the ability to correct an assessment error. [ 64 ] Nonetheless, the success of TNC’s argument on this point does not mean, in and of itself, that the Committee erred in overturning the Board’s decision. I say this because, when it requested SAMA to time-adjust the Humboldt and Weyburn mall sales, the Board overlooked the evidence about whether it was possible to generate such adjustments.

That evidence was not led or developed especially effectively and there some ambiguities in it. Nonetheless, it featured Darwin Kanius, a SAMA official, testifying that it would be “difficult if not impossible” to do a time adjustment of the Weyburn sale to reflect its value as of the base year and Archie Robertson, another SAMA official, indicating that there was not enough information to time adjust the Weyburn and Humboldt sales.

No doubt referencing this testimony, the Committee found, at paragraph 12 of its decision, that “[u]ncontested evidence presented to the Board indicated a time adjustment was not statistically possible”. TNC did not appeal that conclusion, presumably because it does not involve a question of law. [ 65 ] Accepting as I must the Committee’s assessment of the evidence on this issue, the Board should not have asked SAMA to

perform the capitalization calculation in issue. According to the Committee, that calculation was not possible. It follows that the Board erred by opting to use the 2016 assessed value of the Mall when SAMA did not provide the information requested. This is so even though, in his letter replying to the Board, SAMA’s lawyer did not refer to the impossibility of doing the calculation requested but, instead, chose to question the authority of the Board to make the request in the first place. The result remains the same—the time-adjustment was not statistically possible.

VII. conclusion [ 66 ] Only one of the questions of law raised by TNC leads to a bottom line that the Committee’s decision should be set aside. That is the question about the proper test for determining if equity was achieved. SAMA advanced some arguments to the effect that, regardless of whether or not the Committee used the correct test, equity was realized. This, however, is an issue that is best addressed by the Committee itself.

In the end, therefore, I would set aside the Committee’s decision and remit the appeal from the Board to it for a reconsideration, with that reconsideration being limited to the issue of whether its decision changes when “equity” is understood in the proper sense, i.e., in the sense specified in s. 165(5) of the Act . [ 67 ] TNC is entitled to the costs of its application for leave to appeal as per the order of Caldwell J.A. granting leave to appeal.

Given TNC’s lack of success in relation to most of the points it raised, it is appropriate that both TNC and SAMA bear their own costs with respect to the appeal proper. “Richards C.J.S.” Richards C.J.S. I concur. “Jackson J.A.” Jackson J.A. I concur. “Kalmakoff J.A.” Kalmakoff J.A.