Altus Group Limited on behalf of Various Owners Appellant (Applicant) v. City of Estevan and Rural Municipality of Estevan No. 5 (as, 2021 SKCA 101

Court of Appeal for Saskatchewan Dockets: CACV3576 and CACV3630 Citation: Altus Group Limited v Estevan (City) , 2021 SKCA 101 Date: 2021-07-28 Docket: CACV3576 Between: Altus Group Limited on behalf of Various Owners Appellant (Applicant) And City of Estevan and Rural Municipality of Estevan No. 5 (as represented by the Saskatchewan Assessment Management Agency) and Saskatchewan Municipal Board Respondents (Respondents) Docket: CACV3630 Between: Acklands-Grainger Inc. and Ryan Scott Smith Appellants (Appellants) And City of Estevan and Rural Municipality of Estevan No. 5 and Saskatchewan Assessment Management Agency Respondents (Respondents) Before: Caldwell, Leurer and Tholl JJ.A.

Disposition: Appeals dismissed Written reasons by: The Honourable Mr. Justice Tholl In concurrence: The Honourable Mr. Justice Caldwell The Honourable Mr. Justice Leurer On appeal from: 2020 SKQB 20 and 2020 SKMB 13 , Regina Appeal heard: May 6, 2021 Counsel: Leonard Andrychuk, Q.C., Allison Graham and Aziz Aboudheir for the Appellants Jeff Grubb, Q.C., and Nathanial Day for the City and the R.M. Charita Ohashi for the Saskatchewan Municipal Board Tholl J.A. I.

INTRODUCTION [ 1 ] These appeals address the recourse taxpayers have when they are successful in a property tax assessment appeal to the Assessment Appeals Committee of the Saskatchewan Municipal Board [Committee], but the assessor is alleged to have not complied with the Committee’s directions that resulted from that success.

Specifically, the ability of taxpayers to challenge and enforce compliance with directions given by the Committee to the Saskatchewan Assessment Management Agency [SAMA], under s. 53 and s. 54 of The Municipal Board Act , SS 1988-89, c M-23.2 [ MBA ], is at stake in these appeals. [ 2 ] While the two appeals at hand arise out of different processes and different tax years, they were heard concurrently because of the significant overlap of parties and issues. As a result, this single judgment addresses the issues that arose in both appeals. [ 3 ] For the reasons that follow, both appeals are dismissed. II.

BACKGROUND A. The Altus appeal 1. Altus Background [ 4 ] Altus Group Limited [Altus] is the agent for several taxpayers that own commercial properties that are in excess of 6,000 square feet in the City of Estevan [City] and in the Rural Municipality of Estevan No. 5 [Rural Municipality]. SAMA is the assessor that completed the property tax assessments on the properties.

The owners were dissatisfied with their 2017 assessments and, through Altus, appealed them to the appropriate boards of revision, pursuant to s. 197 and s. 198 of The Cities Act , SS 2002, c C-11.1 , and s. 225 and s. 226 of The Municipalities Act , SS 2005, c M-36.1 . One property assessment in the City and one in the Rural Municipality were chosen to be the subjects of the lead appeals. While they raised several issues, Altus’s main argument was that the assessment model used by SAMA failed to account for and consider the sales data for larger properties.

They asserted the assessment to sales ratio [ASR] for properties over 6,000 square feet consistently exceeded 1.0 and SAMA’s failure to adjust for the impact of size resulted in the overvaluation and, consequently, over-taxation of their properties.

[5] The property owners met with mixed success at the boards of revision, resulting in further appeals and a cross-appeal to theCommittee under s. 216 and s. 217 of The Cities Act and s. 246 and s. 247 of The Municipalities Act. The Committee determined there wasmerit to the property owners’ position and rendered two decisions: one for the properties in the City, Various (Altus) v Estevan (City),2019 SKMB 36 [2017 City Decision]; and one for the properties in the Rural Municipality, Estevan (Rural Municipality) vVarious (Altus), 2019 SKMB 34 [2017 R.M.

Decision]. [6] The relevant portions of the 2017 City Decision are as follows: [43] The Cap rates for this sale group are highly variable but the transaction with the 20.61% Cap Rate (6,000 square feet) is not wildlyout of context with the other Cap Rate sales. SAMA left the sale in the final Cap Rate analysis but discounted its use to validate the 6,000square foot and larger statistics. SAMA may have had a basis to trim this sale from use in the assessment analysis, but because it is aninfluence on the assessments, it should be considered in the statistical testing.

The parties agreed that, left in, the statistics support anadjustment for larger structures. We must agree. [44] Mr. Gloudemans, an international expert on mass appraisal, stated that “some adjustment for larger properties can be supported, theproposed solution is unreasonable and does not make appraisal sense”. We agree with Mr. Gloudemans. The graph on page 13 of Altus’submission to the Board shows the ASRs of the Cap Rate sales versus rent area. Near 6,000 square feet, only a small adjustment isrequired to the four sales to achieve a median ASR near 1.00.

The remaining four sales do not support increasing Cap rates beyondapproximately 9,000 square feet. [45] We are unable to rule on the appropriate Cap Rate adjustment. Accordingly, we must remit the matter back to SAMA to ensure theerrors identified in this decision are corrected and that “an accurate, fair and equitable assessment for the property is placed on theassessment roll” (subsection 226(1)(

c) of [The Cities] Act). [7] The relevant portions of the 2017 R.M. Decision are as follows: [29] As we have found in favour of Altus, and have provided direction to SAMA with respect to the calculation of the assessment of thesubject properties, no further commentary is required relating to the issues on cross-appeal. … [31] The Committee remits the 2017 property valuations to SAMA. The assessments are to be calculated based upon the data reflected onthe graph on page 149 of Tab 5 in Altus’ submission to the Board, which illustrated the ASRs of the Cap Rate sales versus rent area.

Near6,000 square feet, only a small adjustment is required to the four sales to achieve a median ASR near 1.00. The remaining four sales donot support increasing Cap rates beyond approximately 9,000 square feet. [8] The bottom line to the 2017 City Decision and the 2017 R.M. Decision was that the matters were remitted to SAMA to makeadjustments to the assessments based on the directions in the two decisions.

In response, SAMA undertook some further analysis, adjustedthe assessed values of the properties by a straight-line amount of 4%, regardless of size, and reported the changes back to the Committeeand the property owners. After reviewing these changes, Altus took the position that SAMA had failed to comply with the directions in theremittals. In its view, the directions from the Committee required SAMA to use a curved or incremental reduction in the capitalizationrates as the properties increased in size.

For its part, SAMA says that it remitted revised property assessments that corrected the errorsidentified by the Committee and which ensured that an accurate, fair and equitable assessment was placed on the assessment roll. 2. Decision in the Court of Queen’s Bench [9] In response to the perceived failure to comply by SAMA, Altus filed an originating application with the Court of Queen’sBench, pursuant to s. 53(2) of the MBA, and requested the following order, as amended during submissions in that court: 1.

The Saskatchewan Municipal Board, Assessment Appeals Committee (the “Committee) make a determination with respect to thedecision of the Committee dated July 5, 2019, in relation to Appeal No. AAC 2017-0239 (and the additional appeals before it) and thedecision of the Committee dated May 22, 2019, in relation to Appeal No.

AAC 2017-0411 (and the additional appeals before it)(collectively, the “Appeal Decisions”), as to whether the Saskatchewan Assessment Management Agency has complied with the directionsof the Committee contained in the Appeal Decisions and to notify the parties to the application of the result of this determination. [10] In essence, Altus was requesting an order from the Court of Queen’s Bench that authorized and compelled the Committee tomake a determination of whether SAMA had failed to comply with the directions contained in the remittals.

Under Altus’s furtherinterpretation of the MBA, if the Committee were to then find that SAMA had failed to comply, the Committee would have the authorityto direct compliance by SAMA. The application was opposed by SAMA. [11]

Section 53 of the MBA is as follows: Filing with Queen’s Bench 53(1) A certified copy of any order of the board may be filed in the office of a local registrar of the Court of Queen’s Bench and is onfiling enforceable in the same manner as a judgment or order of that court, but the board may nevertheless rescind or vary, as the caserequires, any copy of an order filed when the original order is rescinded or varied.

(2) In an application to a court arising out of the failure to comply with an order of the board, the court may refer any question concerningcompliance to the board.

(3) An application to enforce an order of the board may be made to a court by and in the name of the board and the court is bound by thefindings of the board and shall make any order that may be necessary to cause compliance with the order of the board.

(4) The board may in its own name appeal any judgment, decision or order of any court affecting any of its orders.

[ 12 ] The matter was heard in Chambers in the Court of Queen’s Bench. The Chambers judge determined that he did not have authority under s. 53(2) of the MBA to grant the requested order: Altus Group Ltd. v Estevan (City) , 2020 SKQB 20 ( QB Decision ). He reached the following conclusions with regard to the absence of authority: [27] What the applicant proposes is to have a two-tiered approach to the review, or reconsideration, of Committee decisions. The first is that avenue recognized by the applicable legislation, and upon which Caldwell J.A. outlined the authority.

That is, the Committee holds a statutory appellate jurisdiction. Then, the decisions of the Committee may be subject to appeal to the Court of Appeal, with leave, as provided for in the legislation. [28] The second tier the applicant seeks would then be a second review, or appeal, avenue opened. That is, this Court would be able to determine if the Committee’s decision had been complied with.

This Court would consider whether the revised assessment is appropriate and would determine whether to correct, or alter it, based on that determination. … [30] In the words of Jackson J.A., while the applicant in the case now before this Court has framed its arguments in a fresh, innovative manner, the essential issue remains the same as that considered by the Court of Appeal in both Corman Park [2018 SKCA 29] and Wal- Mart [2019 SKCA 20]. The legislative framework under which property tax assessments are to be considered is as set forth in Corman Park .

That is, the party seeking to have the assessment reviewed must follow the hierarchical pathway through the Board of Revision, to the Committee, and, with leave to the Court of Appeal. [31] In short, to apply s. 53(2) of the [ MBA ] as proposed by the applicant would be to effectively make this Court one with appellate jurisdiction. That jurisdiction is reserved to the Court of Appeal. … [32] In the result, in view of the determinations of the Court of Appeal in Corman Park , there may be no alternative route of appeal, absent legislative authority.

The provision relied upon by the applicant does not give such appellate authority to this Court. That authority is reserved to the Court of Appeal. [33] To hold otherwise would be to create two possible appeal paths. This is not the approached identified in Corman Park . It is not an approach which can be justified by applying the

section suggested by the applicant. [34] As a result of my determination on the ability of this Court to consider, or reconsider, a decision of the assessing authority, I decline to provide any further

interpretation of s. 53 of the [ MBA ]. Rather, such determination is better left to a case directly applying these provisions of the [ MBA ]. [ 13 ] Altus appeals from the QB Decision and asks this Court to grant the order it requested in the Court of Queen’s Bench. B. The Acklands-Grainger appeal 1. Acklands-Grainger Background [ 14 ] A group of substantially the same property owners were also dissatisfied with their 2018 assessments and appealed them to the appropriate boards of revision, pursuant to s. 197 and s. 198 of The Cities Act and s. 225 and s. 226 of The Municipalities Act .

Again, one property assessment in the City and one in the Rural Municipality were chosen to be the subjects of the lead appeals: Acklands-Grainger Inc. and Ryan Scott Smith [Acklands-Grainger]. They continued to be represented by Altus. [ 15 ] At the boards of revision, the taxpayers argued that SAMA had erred in numerous aspects with regard to the 2018 municipal tax assessments. While they had several grounds of appeal, their primary argument centered around the use of 2017 data in the 2018 model. In 2018, SAMA had undertaken a reinspection of properties and collected new data.

The property owners argued SAMA erred by continuing to rely on older information and by not implementing the data changes into its 2018 model. They asserted SAMA had failed to adjust for age and to stratify by size based on the new data. The boards of revision dismissed the appeals on all grounds. [ 16 ] The property owners further appealed to the Committee and were partially successful: Various (Altus) v Estevan (City) , 2020 SKMB 13 [ 2018 Decision ]. This resulted in a single decision from the Committee remitting the assessments to SAMA with directions.

The following directions related to only one property: Sale 991604 – 1104 5th Street (9,108 square foot building) [37] Altus’ position to the Board was this property should be classed as open mall and not as general retail. SAMA considered the structure to have an effective age of 1946 (the actual chronological age). Altus pointed out various building permits and testimony of the previous owner indicated the effective age should be newer than its chronological age.

Information from the City showed, in 1995/1996, the upper floor (with an area of approximately 20% of the main floor) was converted from warehouse to residential space. SAMA countered, stating the sale interview did not indicate a need to revisit the effective age, and renovations can be cosmetic and not influence the effective age. We agree with SAMA, money must periodically be spent on buildings to keep them in proper repair and this does not influence the effective age. However, in this case, there is objective evidence the small second floor was modified substantially in 1995/1996.

We find SAMA should revise the effective age to consider the second-floor renovations. In its submission to us, SAMA agreed the building was properly described and valued an open mall. In

summary, we find the effective age should be recalculated as described above, and the property should be valued as an open mall. … [41] In

summary, we find Altus has not proven errors in SAMA’s treatment of 405 Kensington Avenue, 1132-5th Street, or 1112-5th Street. SAMA shall modify the analysis for 1104-5th Street as described in paragraph [37].

[17] The Committee also provided directions that potentially related to all of the properties: [63] Are the errors of sufficient magnitude to require recalibration of the model? We only have confidence in the evidence presented bythe parties with respect to a need for an adjustment in Cap Rates for building age. While the various numbers are not identical, the resultsare similar (see paragraph [54] on page 21 of SAMA’s submission). Assuming SAMA’s model results are accurate, the base Cap Ratechanges from 8.40% (2017 model) to 8.34% (2018 model), or less than 1%.

We do not regard this as consequential. [64] Assuming SAMA’s results are accurate, the age adjustment is revised from 0.09 per year (2017 model) to 0.069 per year (2018model). This is a change of 30% and has a greater impact for older buildings than newer buildings. For example, a 1955 building wouldhave an increase in the Cap Rate adjustment of 3.15% (2017 model) versus 2.415% (2018 model). A 1985 building would be adjusted0.45% for 2017 and 0.345% for 2018.

We find there is adequate evidence to show the 2018 reinspection influenced the analysissufficiently that a new model must be determined using the 2018 data. As stated previously, we do not have confidence in Altus’ positionan adjustment for building size is warranted. However, we expect SAMA will investigate this issue. [65] Therefore, we remit the assessment to SAMA to derive a new Cap Rate model for the 2018 tax year using the 2018 data. CONCLUSION: [66] The Committee dismisses the appeal on Issues

a) and c). We allow the appeal on Issues

b) and d). Paragraphs [37], [41] and [65]above outline our findings with respect to Issues

b) and d). Due to previous Court of Appeal decisions, SAMA cannot increase theassessments above what they were originally in the 2018 roll. [67] We expect SAMA will undertake these tasks and adjust the assessments according to our directions. [65] Therefore, we remit the assessment to SAMA to derive a new Cap Rate model for the 2018 tax year using the 2018 data. 2.

Further involvement by the Committee [18] As a result of the remittal directions contained in the 2018 Decision, SAMA revised the effective age for the one specificbuilding, undertook some further analysis, and provided a reply to the Committee on March 20, 2020, indicating the steps it had taken inresponse to the remittal. The taxpayers, through Altus, immediately expressed dissatisfaction with the actions taken by SAMA. On March27, 2020, Altus further wrote to the Committee and provided detailed reasons why it believed SAMA had failed to comply with theCommittee’s directions.

Altus asked the Committee to do the following: The purpose of this letter is to request the Committee to exercise its powers under

section 54 of The Municipal Board Act and directSAMA to provide further statistical analysis and explanation of the adjustments made to calculate the value in the remittal. We wouldfurther respectfully request the Committee direct SAMA to make the same adjustments for size as directed in the 2017 Decisions[.] … In 994552 N.W.T. Ltd. v Kindersley (Town), 2019 SKCA 77 at para 70, the Court of Appeal noted that this provision gives the Committeethe power to order SAMA to comply with its orders.

A nearly identical provision was found to empower the board to provide clarificationof its decisions and further directions, in British Pacific Properties Ltd. v Assessor, Municipality of West Vancouver, .Copies of both cases are provided with this letter.

Section 41 of The Municipal Board Act would similarly provide the Committee with jurisdiction to order SAMA to comply with itsdirections. It is submitted that SAMA is in default of the direction of the Committee in the 2018 Decision to investigate whether an adjustment forbuilding size is warranted, and failing to make the adjustment revealed as necessary by the adjusted data. The Appellants therefore requestthat the Committee order the information SAMA relied on, in their determination of its remittal values for the subject appeals and makethe same order for size it did in 2017.

The detailed information sought is outlined in the accompanying attachment identified as AppendixA which includes the reasoning and analysis. [19] Sections 41 and 54 of the MBA are as follows: Requiring or forbidding acts 41 In matters within its jurisdiction the board may order and require any person, local authority or board of education to do, within anytime and in any manner specified by the board, any act, matter or thing that the person, local authority or board of education may berequired to do pursuant to any Act, and the board may forbid the doing or continuing of any act, matter or thing in contravention of thatAct or of any regulation, order or direction of the board. … Board authorization to act 54 If default is made by any person, local authority or board of education in the doing of

an act, matter or thing that the board hasauthority, pursuant to this or any other Act, to direct and has directed to be done, the board may authorize any person as it sees fit to do theact, matter or thing, and in that case the person so authorized may do the act, matter or thing, and the expense incurred in the doing of itmay be recovered from the person, local authority or board of education in default as money paid for and at the request of that person,local authority or board of education and the certificate of the board of the amount expended shall be conclusive evidence of that amount. [20] On April 1, 2020, SAMA provided a further reply with additional information regarding the steps it had taken in response tothe remittal.

The taxpayers remained dissatisfied with the response and, on April 3, 2020, wrote to the Committee as follows: “We are in

receipt of SAMA’s letter dated April 1st, 2020 but it does not satisfy our request dated March 27th to the Committee. We would respectfully request a response from the Saskatchewan Municipal Board by April 10th, 2020 to our initial request dated March 27th, 2020”. [ 21 ] The Committee responded by letter on April 3, 2020 [Committee Letter]: Thank you for your letters dated March 27, 2020, and April 3, 2020. The Committee does not believe that

Section 54 of The Municipal Board Act ( Act ) can be used to garner further information in the case of a remittal response with which you disagree. Neither do we accept the proposition that

Section 54 may be used to direct the Assessment Appeals Committee of the SMB to rule in a certain fashion as your last paragraph from your first letter asks. Therefore we decline to make the orders requested. You have the right to appeal this decision to the Court of Appeal within 30 days from the date of this decision in accordance with

section 33.1 of the Act . Written notice should be made to the Registrar, Court of Appeal for Saskatchewan, 2425 Victoria Avenue, Regina SK S4P 4W6, with a copy to our office at the address above. [ 22 ] The Committee took no further steps in relation to its remittal to SAMA from the 2018 Decision . [ 23 ] Leave to appeal to this Court was granted, pursuant to s. 33.1 of the MBA , on one question of law: “Did the Committee err in law or jurisdiction when it found that it had no jurisdiction pursuant to The Municipal Board Act , S.S. [1988-89], c.

M-23.2 to determine whether the Assessor was in default of the directions of the Committee in its decision dated March 18, 2020, and to direct the Assessor to comply with its directions?” [ 24 ] That question has been summarized in the Acklands-Grainger factum as, “does s. 54 of [the MBA ] empower the Committee to supervise its own orders and compel the Assessor to comply with same?” III. ISSUES [ 25 ] The following issues arise in the Altus appeal: (

a) Did the Chambers judge err in determining that s. 53 of the MBA did not give the Court of Queen’s Bench authority to make the order sought by Altus? If so, what is the correct

interpretation of s. 53 of the MBA ? (

b) Should this Court, pursuant to s. 12(1) (

d) of The Court of Appeal Act, 2000 , SS 2000, c C-42.1 , refer the question regarding compliance to the Committee? [ 26 ] The following issues arise in the Acklands-Grainger appeal: (

a) Was the Committee Letter an order, decision or determination that could be appealed to this Court under s. 33.1 of the MBA ? (

b) Did the Committee err when it determined that it had no jurisdiction under s. 54 of the MBA to decide whether SAMA was in default of the Committee’s directions and to direct SAMA to comply if it was in default? IV. ANALYSIS A. Appeal rights post-remittal [ 27 ] Section 226(1) (

c) of The Cities Act and s. 256(1) (

c) of The Municipalities Act provide the Committee with the authority to remit a matter to an assessor if it allows an appeal. However, these sections do not provide any authority to the Committee to monitor compliance, or make further orders, if its remittal directions are incorrectly complied with or outright ignored. [ 28 ]

Section 33.1 of the MBA provides an appellant with the right to apply to this Court for leave to appeal an order, decision or determination of the Committee, but those appeal rights do not assist the appellants in this matter. As determined in Corman Park (Rural Municipality) v 618421 Saskatchewan Ltd ., 2018 SKCA 29 , 73 MPLR (5th) 1 [ Corman Park ], a party cannot appeal a new assessment – that has arisen after a remittal by the Committee to the assessor – to a board of revision.

As the new assessment cannot be appealed to a board of revision, it cannot be further appealed to the Committee or, ultimately, to this Court. [ 29 ] Additionally, the Committee does not have any power to give further orders or directions to the assessor under The Cities Act or The Municipalities Act after the matter has been remitted to the assessor.

These limitations are described by Caldwell J.A. in Corman Park : [68] … To some degree the relevant legislation leaves open the question of what happens after the Committee has returned a matter to an assessor for reassessment under s. 256(1) (c), because it does not expressly provide for appeal rights.

However, I find that the common, overall scheme of the relevant legislation leads to the conclusion that the Committee has no express authority to order an assessor to revise the assessment roll or to issue a new notice of assessment once the assessment roll has been confirmed. [69] The Committee has the express jurisdiction to order an assessor to reassess a property in the exercise of its power under s. 256(1) (c), but I find that authority does not empower the Committee to order an assessor to amend or alter an assessment roll after it has been confirmed or to issue a new notice of assessment or, specifically, to order that a reassessment “be subject to the usual notice and appeal processes”. … …

[76] … the Committee has no jurisdiction to grant or confer a right of appeal on a taxpayer or any other party.

As the purported right ofappeal is not found in The Municipalities Act or The Municipal Board Act, it does not exist at law and it cannot be created by theCommittee. [30] As confirmed in Walmart Canada Corp. v Saskatoon (City), 2019 SKCA 20 at paras 17–25 [Walmart], the Committee does nothave the jurisdiction, within the appeals process under The Cities Act or The Municipalities Act, to determine whether the assessor hascomplied with its remittal directions. [31] There are no provisions in The Cities Act or The Municipalities Act that govern what happens after a matter is remitted back tothe assessor following a successful appeal to the Committee.

The appellants wish to have s. 53 and s. 54 of the MBA interpreted asproviding authority for the Committee to determine compliance with its remittals to an assessor, and to make further orders regarding anynoncompliance, because there does not appear to be any other statutory mechanism that permits the Committee to do so. B. Legislative history [32] Sections 53 and 54 of the MBA were enacted in 1988. Section 53(2) has never been amended.

Section 54 has been amendedonce in 2012 (The Education Consequential Amendments Act, 2012, SS 2012, c 11, s 2), but only to strike out “or local authority”wherever it appeared and to substitute “, local authority or board of education”. [33] The ability to remit a matter to an assessor is a relatively new addition to the powers of the Committee. The amendments to thelegislation that provided this option to the Committee were made in 2013: (

a) s. 226 of The Cities Act – The Cities Amendment Act, 2013, SS 2013, c 6, s 28; and (

b) s. 256 of The Municipalities Act – The Municipalities Amendment Act, 2013, SS 2013, c 19, s 41. Hansard does not appear to contain any relevant discussion regarding whether the existing powers under s. 53 and s. 54 of the MBA wereexpected to work in conjunction with the Committee’s remittal to an assessor. C. Principles of statutory

interpretation [34] An

interpretation of a statutory provision raises a question of law and is, therefore, reviewed on a standard of correctness:Housen v Nikolaisen, 2002 SCC 33 at paras 8–9, [2002] 2 SCR 235; Arslan v Şekerbank T.A.Ş, 2018 SKCA 77 at para 43, 38 CPC (8th)311; and Charles v SGI, 2021 SKCA 11 at para 14, 456 DLR (4th) 132. [35] The starting point for the

interpretation of ss. 33.1, 53 and 54 of the MBA is an examination of the principles of statutoryanalysis codified in The Legislation Act, SS 2019, c L-10.2.

Section 2-10(1) of The Legislation Act requires that, in interpreting legislation,the words of

an Act are to be “read in their entire context, and in their grammatical and ordinary sense, harmoniously with the scheme ofthe Act, the object of the Act and the intention of the Legislature”. In s. 2-10(2), an interpreting court is directed to construe everyenactment as being remedial and to give it “the fair, large and liberal

interpretation that best ensures the attainment of its objects”. [36] This modern approach to statutory

interpretation was recently summarized by the majority in Regina Bypass Design Builders vSupreme Steel LP, 2021 SKCA 82: [23] The proper approach to any issue of statutory

interpretation is the so-called modern principle articulated in Rizzo & Rizzo Shoes Ltd.,(Re), (SCC), [1998] 1 SCR 27 [Rizzo Shoes], which “recognizes that statutory

interpretation cannot be founded on thewording of the legislation alone” (at para 21). … … [25] The language of the statutory provision in question is always the starting point, but not the end point, of an exercise in

interpretation.As noted in Hess v Thomas Estate, 2019 SKCA 26, 433 DLR (4th) 60 [Hess]: [50] The modern principle and s. 10 [now s. 2 of The Legislation Act] demand a contextual and purposive approach. However, that doesnot mean the court can ignore the ordinary meaning of the words chosen by the legislature. As noted in Ruth Sullivan, Sullivan on theConstruction of Statutes, 6th ed, (Markham, Ont: LexisNexis, 2014) at 29 [Sullivan]: [I]nterpretation properly begins with the ordinary meaning – with reading words in their grammatical and ordinary sense – but does notstop there.

Interpreters are obliged to consider the total context of the words to be interpreted in every case, no matter how plain thosewords may seem upon initial reading. [51] The ordinary meaning prevails unless there is a reason to reject it based on contextual considerations. Such considerations – one ofwhich is the avoidance of absurdities – may result in the adoption of an

interpretation that differs from the ordinary meaning, but only ifthat

interpretation is plausible (Sullivan at 28–29). The plausible meaning rule requires that the

interpretation is one that the words of thetext can reasonably bear (Sullivan at 191). As LeBel J. said in Re: Sound v Motion Picture Theatre Associations of Canada, 2012 SCC 38,[2012] 2 SCR 376: “Although statutes may be interpreted purposively, the

interpretation must nevertheless be consistent with the wordschosen by Parliament” (at para 33). [26] In Ballantyne [2015 SKCA 38], Ryan-Froslie J.A., also citing Ruth Sullivan in Sullivan on the Construction of Statutes, 6th ed,(Markham, Ont: LexisNexis, 2014) [Sullivan], wrote: [20] … …

2. Even if the ordinary meaning is plain, courts must take into account the full range of relevant contextual considerations including purpose, related provisions in the same and other Acts, legislative drafting conventions, presumptions of legislative intent, absurdities to be avoided and the like. 3. … the court may adopt an

interpretation that modifies or departs from the ordinary meaning, provided the

interpretation adopted is plausible and the reasons for adopting it are sufficient to justify the departure from ordinary meaning. [27] The modern principle emphasizes the importance of purposive analysis in statutory

interpretation. All legislation is presumed to have a purpose which courts should strive to discover and give effect to through the interpretive process. Legislative purpose must be taken into account at every stage of the

interpretation exercise and, so far as the language of the text permits,

interpretations that are consistent with or promote legislative purpose should be adopted, while those that defeat or undermine legislative purpose should be avoided ( Sullivan at §9.3; Farm Credit Canada v Gustafson , 2021 SKCA 38 at para 58 ). [28] Context must also be taken into account. As Sullivan observes, at §2.19, “in hard cases the contextual factors point in different directions” and “[i]n such cases, reading the text harmoniously with the scheme and object of the Act and the intention of the legislature requires a balancing act”.

All of this means that in some instances, the plain meaning of the words used will receive greater weight in the analysis and, in other cases, less. As Sullivan describes, at §2.37: The factors that justify outcomes in statutory

interpretation are multiple, involving inferences about meaning and intention derived from the text, non-textual evidence of legislative intent, specialized knowledge, “common sense” and legal norms. These factors interact in complex ways. It is never enough to say the words made me do it. D. The Altus appeal 1. Positions of the parties [ 37 ] Altus submits that there must be a means by which a taxpayer can have recourse where an assessor does not comply with the remittal directions of the Committee after a successful appeal.

It notes this non-compliance could take many forms such as a misunderstanding of the directions, a failure to completely implement the directions or a deliberate decision to simply ignore the directions. Altus argues that, absent some method to ensure compliance, an assessor has a free hand to do as they wish regardless of the direction that has been given by the Committee or the requirements of law.

It submits the Legislature, through s. 53 of the MBA , provided a means to avoid giving arbitrary, unassailable authority to the assessor on remittal. [ 38 ] Altus contends that s. 53(2) of the MBA provides the Court of Queen’s Bench with the authority to make an order that would require the Committee to determine whether SAMA had complied with its directions after a successful appeal that contained such directions. Altus suggests an application under s. 53(2) would proceed as follows: (

a) any party who alleged SAMA had not complied with directions given by the Committee after a successful property tax assessment appeal could apply to the Court of Queen’s Bench and request an order requiring the Committee to determine if there had been compliance; (

b) the Court of Queen’s Bench would hear submissions and examine the evidence and, applying a test similar to that used for

summary judgment, determine if there was a genuine question concerning SAMA’s compliance with the remittal directions; (

c) if the Court of Queen’s Bench determined there was a genuine question as to whether SAMA had failed to comply with the Committee’s directions, it would refer the question of compliance to the Committee to make an actual determination regarding SAMA’s compliance and take no further role in the matter; (

d) the Committee would hold a hearing, if necessary, and determine if SAMA had complied with its directions; and (

e) if it found non-compliance, the Committee would order SAMA to comply. [ 39 ] SAMA contends that s. 53 of the MBA provides for applications to the Court of Queen’s Bench for a variety of purposes; but it cannot be used in the manner propounded by Altus. Further, it argues that only the Saskatchewan Municipal Board [Municipal Board], which would include the Committee, is permitted to apply to the Court of Queen’s Bench under s. 53 . [ 40 ] For its part, the Municipal Board took no position with regard to the merits of the appeal and limited its submissions to the

interpretation of s. 53 of the MBA . Contrary to SAMA, it submits that any affected party can make an application to the Court of Queen’s Bench under s. 53 of the MBA . However, it submits the

section cannot be used to order the Committee to determine compliance by SAMA and then order compliance with respect to directions after a successful property tax assessment appeal. 2.

Interpretation of s. 53 of the MBA [ 41 ] The MBA establishes the Municipal Board, outlines its jurisdiction and sets out its authority. Its jurisdiction is not limited to, or even predominantly occupied with, property tax assessment appeals. The Municipal Board’s jurisdiction includes property tax assessment appeals arising under The Cities Act and The Municipalities Act , but also extends to many other areas, including planning and development appeals, municipal boundary alterations, fire prevention appeals, weed control appeals, financial supervision of local authorities and many other matters.

Various committees of the Municipal Board hear appeals under disparate pieces of legislation. In each of these cases, the Municipal Board’s jurisdiction is derived from a combination of the MBA and the underlying statute. A variety of orders may be made by the Municipal Board in relation to these areas of responsibility. The general purpose of the MBA is to provide the Municipal Board with the authority to act within its broad range of responsibility. It is within this wide scope of authority that s. 53 must be interpreted.

[ 42 ] None of the parties referred the Court to any prior cases that had interpreted s. 53 of the MBA and the Court did not locate any in its own research. [ 43 ] It is useful at this point to repeat the text of s. 53 of the MBA : Filing with Queen’s Bench 53

(1) A certified copy of any order of the board may be filed in the office of a local registrar of the Court of Queen’s Bench and is on filing enforceable in the same manner as a judgment or order of that court, but the board may nevertheless rescind or vary, as the case requires, any copy of an order filed when the original order is rescinded or varied.

(2) In an application to a court arising out of the failure to comply with an order of the board, the court may refer any question concerning compliance to the board.

(3) An application to enforce an order of the board may be made to a court by and in the name of the board and the court is bound by the findings of the board and shall make any order that may be necessary to cause compliance with the order of the board.

(4) The board may in its own name appeal any judgment, decision or order of any court affecting any of its orders. [ 44 ] The entry point to the operation of s. 53 is the existence of an order. The choice of the words “any order” in s. 53(1) connotes a broad application of the section, which indicates the

section is meant to generally apply to orders made by the Municipal Board under any of its areas of responsibility. It is clearly an enforcement mechanism because it permits any order to be filed with the Court of Queen’s Bench and be enforced as if it were a judgment of that court. [ 45 ] This leads to the question of who can file such an order. Altus, with the Municipal Board’s concurrence, submits that any party to an order can file it with the Court of Queen’s Bench and seek to have it enforced. SAMA argues that only the Municipal Board can file an order with the court.

In my view, the language of s. 53(1) authorizes any party to file an order of the Municipal Board with the Court of Queen’s Bench for the purposes of enforcement. Section 53(1) speaks in terms of the order, not of the parties. It does not provide any limiting words with regard to the person who can file such an order. Unlike s. 53(3), which speaks only of enforcement applications made by the Municipal Board, s. 53(1) and s. 53(2) do not contain such limitations. Elsewhere in the MBA , when the Legislature intended to confine a particular

section to an action that can be taken only by the Municipal Board, it explicitly set out that limitation: see, for example, s. 20(6) and s. 33(1) of the MBA . Likewise, s. 53 does not explicitly exclude any particular category of order made by the MBA and, therefore, does not explicitly exclude an order made by the Committee. [ 46 ] Furthermore, orders made under the MBA are not made for the benefit of the Municipal Board; they are made for the benefit of one or more of the parties. As such, it would seem to make little sense to place the enforcement of its orders solely in the hands of the Municipal Board. This would not support the remedial purpose of a

section that permits the enforcement of orders in the same manner as judgments of the Court of Queen’s Bench. As a further observation, I note that a restrictive

interpretation would be nonsensical when one considers the operation of s. 53(2). It would be illogical to find that the Legislature intended that the Municipal Board have the exclusive power to apply under s. 53(1) only to have a question of compliance referred back to itself under s. 53(2). Arguably, if only the Municipal Board could file an order and apply under s. 53(1), then s. 53(3) would be redundant. [ 47 ] A proper

interpretation of s. 53 leads to the conclusion that any party to an order of the Municipal Board can file that order and apply to have it enforced. [ 48 ] Once a party has filed an order of the Municipal Board under s. 53(1) of the MBA , it can be enforced as if it were an order of the Court of Queen’s Bench. This brings us to the operation of s. 53(2). In my view, the expansive

interpretation placed on s. 53(2) by Altus cannot be supported by the language of the subsection, when considered within the context of the entire statutory scheme – including the tax assessment process under The Cities Act and The Municipalities Act – and by applying a purposive approach. To read that subsection as enabling the Court of Queen’s Bench to make a preliminary analysis of compliance, and then refer the issue back to the Committee, thereby empowering the Committee to hold a new hearing and make further orders regarding that compliance, strains past the limits of a proper

interpretation. [ 49 ] In my view, a proper reading of s. 53(2), within the context of the other portions of s. 53 and the purpose of the MBA as a whole, indicates that it is intended to assist the Court of Queen’s Bench with the enforcement of the variety of orders that can be made under the MBA . I note that the words in s. 53(2), “In an application to a court arising out of the failure to comply with an order of the board”, presupposes that there is non-compliance.

If, in the course of enforcement of an order, a judge of the Court of Queen’s Bench has questions arising out of non-compliance with the order, they may refer those questions to the Municipal Board and receive answers.

That is the limited role to be played by the Municipal Board under s. 53(2). [ 50 ] With all of this as context, it is my view that the creation of a mechanism that would permit the Court of Queen’s Bench to empower the Committee to monitor its remittal directions, determine compliance, and make further orders in that regard, cannot be supported by the sparse and straightforward language of s. 53(2), when considered within the entire context and purpose of the legislative scheme. A fair, large and liberal

interpretation cannot stretch s. 53(2) to the

interpretation urged by Altus. Section 53(2) does not provide the Court of Queen’s Bench with the authority to confer jurisdiction on the Municipal Board, through the Committee in the case of tax assessment appeals, to monitor or enforce compliance with a remittal to SAMA. 3. Referral back to the Committee [ 51 ]

Section 53 of the MBA does not provide the Court of Queen’s Bench with the authority to order the Committee to determine if SAMA is in compliance with its directions and have the Committee make further directions or orders if there is non-compliance. As a result, the matter cannot be referred back to the Committee and there is no remedy that can be granted pursuant to s. 53 of the MBA . The appeal must be dismissed. However, this does not mean that the taxpayer in these situations is without a remedy. I will return to discuss this point later in these reasons.

E. Acklands-Grainger appeal 1. The Committee Letter is an order, decision or determination [ 52 ] As a preliminary issue, SAMA argues that the Committee Letter cannot be appealed under s. 33.1 of the MBA . The relevant portion of that

section is as follows: 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 … . [ 53 ] As it did in the leave application, SAMA asserts that the Committee Letter is not an order, decision or determination of the Committee, so it cannot be appealed under s. 33.1 of the MBA . In its submissions, SAMA urges a narrow

interpretation of that phrase on the Court, arguing that, in the context of property tax assessments, the Legislature has chosen to put a mechanism in place that ensures timely and efficient determination of the issues. As a result, SAMA contends that appeals from decisions of the Committee must be restricted to Committee decisions that directly result from the appeal hearing. [ 54 ] Acklands-Grainger asserts that the Committee Letter was a decision or determination regarding jurisdiction that fits squarely into s. 33.1 .

It argues that decisions come in all forms and the fact that the decision was communicated by letter does not affect its substantive nature. [ 55 ] When I granted leave to appeal to Acklands-Grainger, I treated the Committee Letter as an order, decision or determination within the meaning of s. 33.1 of the MBA , but left the final determination of that issue for the panel hearing this appeal.

With the benefit of full submissions on the appeal, I conclude that the Committee letter is a decision or determination that is capable of being appealed under s. 33.1 of the MBA . [ 56 ] While the issue at stake in this preliminary concern has not been previously addressed by this Court, there are two cases from this Court that discuss an

interpretation of the terms decision or determination from s. 33.1. In Walmart , following an appeal by the taxpayers, the Committee remitted the assessment to the assessor for re-evaluation. Following the re-evaluation, the taxpayers were not satisfied that the assessor complied with the Committee’s directions upon remittal. The taxpayers asked the Committee to require the assessor to provide additional information, including the data underlying the re-evaluation. In response, the Committee sent a letter to the taxpayers stating it had no jurisdiction to do such a thing.

The taxpayers applied for leave to appeal under s. 33.1 . In Chambers, Jackson J.A. dismissed the leave application on other grounds. However, in obiter , she stated the following: [29] There is one final comment to be made.

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

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

This argument, however, was not developed before me such that I have not decided this application for leave to appeal on the basis of it. (Emphasis in original) [ 57 ] Justice Jackson’s obiter statement at paragraph 30 of Walmart makes the point that the appeal was not against an exercise of power performed in accordance with the legislation and within the context of the assessment process.

In other words, it suggested that for an order, determination, or decision to be appealable under s. 33.1 , it must be the result of an exercise of power that is performed pursuant to the relevant legislation and within the context of the assessment process. However, the determination of the issue was left for another day. [ 58 ] In Neptune Capital Inc. v Yorkton (City) , 2019 SKCA 136 [ Neptune ], SAMA filed an appeal to the Committee from a decision of a board of revision, but failed to pay the filing fee for the appeal.

As a result, the appeal to the Committee was deemed to be dismissed under s. 218(3) of The Cities Act for non-payment of the fee. Upon appeal to this Court, Schwann J.A. determined the statutory dismissal was a decision of the Committee, describing it as follows: [67] Section 218(3) of [ The Cities ] Act deems an appeal to be dismissed where the filing fee is not paid within 30 days. This result amounts to a constructive dismissal of an appeal and is a decision of the Committee, even though the result is obtained by function of statute.

Thus, I find the Committee did not err in concluding it had no jurisdiction to hear the appeal because of s. 218(3) , but that result did not mean the appeal was somehow void or non-existent from the start. If the Legislature had intended an appeal to be treated in that manner in the face of unpaid filing fees, it could easily have said so.

Rather, SAMA’s 2014 appeal is best seen as an appeal that was filed but “deemed to have been adjudicated” by a function of a legislative provision … . [ 59 ] At a later point in Neptune , when considering s. 40(5) of the MBA , Schwann J.A. further noted the following regarding the nature of the term decision : [86] First, the Committee may only review, rescind, change, alter or vary a decision, approval or order that it made. In other words, the Committee’s conclusion that it had no jurisdiction has to be seen as a “decision, approval or order” for this provision to even apply.

True, it was not a decision on the merits of the appeal, but it was a decision nonetheless.

[60] The British Columbia Court of Appeal addressed a somewhat comparable situation in Get Acceptance Corporation v BritishColumbia (Registrar of Mortgage Brokers), 2008 BCCA 404, 84 BCLR (4th) 84 [Get Acceptance]. In that matter, the appellants were thesubject of an investigation by the Registrar of Mortgage Brokers [Registrar] and the Registrar posted notices concerning a hearing for theappellants on its website, along with significant details of allegations of improper conduct. In response, the appellants issued a statementof claim seeking damages and declaratory relief.

The Registrar opposed the appellants’ application for a declaratory order by contending,inter alia, that the appellants should have challenged the posting of the notices by appealing to the Financial Services Tribunal, unders. 9(1) of the Mortgage Brokers Act, RSBC 1996, c 313, which reads as follows: Appeal to tribunal 9(1) A person affected by a direction, decision or order of the registrar under this Act may appeal it to the tribunal, and, unless otherwiseprovided for in this Act, sections 242.2 and 242.3 of the Financial Institutions Act [RSBC 1996, c 141] apply. [61] In rejecting the arguments of the Registrar, the British Columbia Court of Appeal determined that the posting of the noticeswas not a direction, decision, or order within the meaning of the section.

For that court, Frankel J.A. noted that the relevant legislationcharacterized certain acts by the Registrar as orders, others as directions, and others as decisions, then went on to state the following: [30] “Decision”, “order” and “direction” are words of indeterminate meaning. Their meaning depends on the context in which they areused.

In my view, the fact that s. 9(1) is found in the part of the [Mortgage Brokers] Act that gives the Registrar the power to make certaintypes of decisions, and issue certain types of orders and directions, reflects a legislative intention to provide for appeals only when it is thepower to make those decisions, orders, or directions that has been exercised.

In other words, the legislature did not intend to confer on an“affected” person a right to appeal everything done by the Registrar in the course of performing his statutory functions which could, inordinary parlance, be said be a “decision”, “order”, or “direction”. If that were the case, then, for example, a staff member affected by anemployment-related decision of the Registrar could appeal to the Tribunal. [31] Assuming, without deciding, that the Registrar has authority to post notices containing allegations of misconduct, this action is moreaptly described as a “practice”.

Although, in some sense, it can be said that this practice exists as a result of a policy “decision” by theRegistrar, or as a result of a “direction” given by him to his staff, such a decision/direction was not made in the exercise of any of theadjudicative or coercive powers in the [Mortgage Brokers] Act. Rather, it falls into the category of an administrative or operationaldecision. The fact that the Registrar redacted the notice in this case in response to objections from Get Acceptance and Mr.

Westergaarddoes not change the legal character of what was done, as those changes were not made as a result of the exercise of any adjudicative orcoercive power. [62] This reasoning emphasizes that an appeal pursuant to that enactment could only be made against an exercise of power under therelevant legislation.

In accordance with such reasoning, words such as order, determination, and decision must be given meaning in lightof the legislative scheme and the power granted to the relevant body. [63] In Aljawhiri v Pharmacy Examining Board of Canada, 2017 ONSC 2609 [Aljawhiri], the applicant sought judicial review ofthe Pharmacy Examining Board of Canada’s refusal to allow him to write the exam of qualification for the fifth time. The refusal came inthe form of a letter in response to a request made by the applicant’s lawyer.

The Court found that the letter was not reviewable because it“did nothing more than set out that there is a rule which permits a person to write the examination 3 times plus a further time aftercompleting remedial steps” (at para 3). The court noted that the Registrar–Treasurer of the Pharmacy Examining Board of Canada, whowas the author of the letter, was not empowered to permit a fifth attempt. The letter was considered to be a mere communication of thelaw that governed the Pharmacy Examining Board of Canada.

It is important to note that there had been no proceedings before that board,nor did it use any adjudicative or coercive power. [64]

Section 33.1 of the MBA is a general purpose

section that provides for appeals, with leave, from decisions made by variousarms of the Municipal Board. It is not restricted to appeals from the Committee. As such, its wording must be broad enough to capture thearray of outcomes that can arise under the varied legislation utilized by the Municipal Board, which is then subject to an application forleave to appeal under s. 33.1. However, that comprehensive wording must be read in the context of the legislative scheme in question andtake its meaning based on the application of a purposive approach.

Otherwise, applying the ordinary meaning of decision anddetermination would result in virtually any action or inaction by the Committee being potentially subject to an application for leave toappeal. As discussed during the hearing in this Court, the Committee dismissing a staff member is a decision in the ordinary sense of theword, but no one would suggest that such a dismissal could be appealed under s. 33.1. Here, as is not infrequently the case, the applicationof the purposive approach to the

interpretation of s. 33.1 results in a more narrow or restrictive

interpretation than the plain meaning of thewords would otherwise connote: see, for example, Hills v Canada (Attorney General), (SCC), [1988] 1 SCR 513 atpara 96. [65] This narrower view of the

interpretation of the terms decision and determination must, however, be juxtaposed against theremedial purpose of appeal rights. Speaking in another context, the decision in Saskatoon (City) v Victory Majors InvestmentsCorporation, 2019 SKCA 51, described the approach to be taken to appeal rights in s. 33.1 of the MBA: [16] The objective of s. 33.1 of The Municipal Board 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. [66] The already restricted scope of appeal rights under s. 33.1 of the MBA must also be kept in mind. The

section does not providean automatic right of appeal to this Court on any ground. Leave must be obtained and can only be granted on questions of law orjurisdiction. This narrow focus of appeals, and the gatekeeping function accomplished by a leave application, helps to ensure that theappeals process continues to accomplish its goals of timeliness, efficiency and effectiveness. [67] While not determinative, it is worth noting that the Committee itself considered the conclusion communicated in the CommitteeLetter to be a decision capable of being appealed under s. 33.1 of the MBA. This is evidenced by the inclusion of the following sentence in

the Committee Letter: “You have the right to appeal this decision to the Court of Appeal within 30 days from the date of this decision inaccordance with

section 33.1 of the Act”. [68] In my view, given the purpose of the appeal provisions of the property tax assessment legislation to provide a timely, efficientand effective method for challenging assessments, the words decision and determination, as found in s. 33.1 of the MBA, must be read asrequiring a direct relationship to the appeals process itself.

This relationship to those procedures, as encompassed in MBA, The Cities Actand The Municipalities Act, is the necessary context in which to interpret this aspect of s. 33.1. [69] Acklands-Grainger asked the Committee to determine if SAMA was in compliance with the Committee’s remittal directionsand to take steps to address any non-compliance. The Committee was presented with a formal and detailed request from Acklands-Grainger to do a certain thing utilizing s. 54 of the MBA, and it declined to do so on the basis that it had determined that it did not have therequisite jurisdiction.

This was not a response to a freestanding request by Acklands-Grainger uncoupled from, or devoid of anyconnection to, an assessment appeal. It was a response to an attempt by an appellant to have the Committee exercise its jurisdiction and totake further steps, using powers alleged to be contained in s. 54, within the existing assessment appeal scheme. The underlying appeal hadarisen and had been prosecuted in the normal course of the tax assessment appeal process. Acklands-Grainger asked the Committee to takeadditional action under s. 54 of the MBA in the context of that same appeal.

In response, the Committee communicated that it had nojurisdiction to do so. This was undoubtedly either a decision or a determination by the Committee regarding its jurisdiction, which wasmade in the context of the exercise of its statutory powers in the assessment appeals process. There is no need to decide which of the two itwas. [70] It is my view that, despite the relatively narrow

interpretation that must be given to the words decision and determination ins. 33.1 for tax assessment appeals, they are wide enough to encompass the jurisdictional conclusion communicated by the CommitteeLetter. It represented a decision or determination on a fundamental jurisdictional issue, decided by the Committee using its adjudicativepower, that arose directly from an appeal to the Committee and within the appeal process set out in the legislative scheme. That decisionor determination is capable of being appealed to this Court under s. 33.1 of the MBA. 2.

Interpretation of s. 54 of the MBA [71] Acklands-Grainger submits that s. 54 of the MBA provides the Committee with direct authority to supervise its remittaldecisions and to ensure that SAMA complies with its directions. In its view, s. 54 of the MBA, along with s. 53 as argued above, fills thegap left by the remittal provisions in The Cities Act and The Municipalities Act.

Acklands-Grainger submits s. 54 provides the Committeewith the power to inquire into whether SAMA has complied with its remittal directions and, in the event of default, to direct it to comply. [72] SAMA submits that s. 54 of the MBA has no application to the circumstances at hand. It argues that the current situation cannotbe considered as a default within the context of the section.

Additionally, SAMA argues that, even if its actions amounted to a default,s. 54 would only permit the Committee to direct a third party to complete tasks that were the subject of the default and does not authorizethe Committee to direct it to do anything further. Lastly, it asserts the Legislature did not intend continued oversight by the Committeeonce a remittal is made. [73] For ease of reference, I will repeat the text of s. 54, which is as follows: Board authorization to act 54 If default is made by any person, local authority or board of education in the doing of

an act, matter or thing that the board hasauthority, pursuant to this or any other Act, to direct and has directed to be done, the board may authorize any person as it sees fit to do theact, matter or thing, and in that case the person so authorized may do the act, matter or thing, and the expense incurred in the doing of itmay be recovered from the person, local authority or board of education in default as money paid for and at the request of that person,local authority or board of education and the certificate of the board of the amount expended shall be conclusive evidence of that amount. [74]

Section 54 has not been previously analyzed by this Court. In 994552 N.W.T. Ltd. v Kindersley (Town), 2019 SKCA 77, inobiter, Ryan-Froslie J.A. stated the following regarding the powers of the Committee: “Further, pursuant to s. 54 of The Municipal BoardAct, it had the power to direct SAMA to comply with its orders” (at para 70), but did not analyze the issue further.

Section 54 has not beenotherwise judicially considered. [75] In British Pacific Properties Ltd. v West Vancouver (Assessor), (BC SC), [1971] 2 WWR 429 (inChambers), the British Columbia Supreme Court referenced a similar provision found in s. 33 of the Assessment Equalization Act, RSBC1960, c 18 (repealed 20 June 1974, now the Assessment Act, RSBC 1996, c 20). That section, which is now s. 59 (but reads differently),was as follows: Recovery of expense by Board where omission. 33.

In case default is made in the doing of any act, matter, or thing which the Board directs to be done by the person, municipalcorporation, or Provincial Assessor required to do the same, the Board may authorize such person as it sees fit to do the act, matter, orthing, and in every such case the person so authorized may do the act, matter, or thing, and the expense incurred in the doing of the samemay be recovered from the person or municipal corporation in default as money paid for and at the request of the person or municipalcorporation, and the certificate of the Board of the amount so expended is conclusive evidence thereof. [76] Justice Dohm found that an assessment appeal board had the right to inquire into compliance by the assessor, but his reasonsdid not specifically link that right to s. 33.

Later in the judgment, when referencing s. 33, Dohm J. stated, “The statute provides that theBoard of Appeal may direct someone else to carry out its instructions where an assessor is in default” (at 438). It was his observation thats. 33 gave the assessment appeal board the power to order a third party to carry out its instructions. He did not refer to the authority unders. 33 as permitting the assessments appeal board to order the original assessor to comply. [77] The legislative scheme for tax assessment appeals, found in The Cities Act, The Municipalities Act and the MBA must be

considered when interpreting s. 54 of the MBA . As noted above, the purpose of the tax assessment appeal process, as found in that legislation, is to provide a timely, efficient and effective method to challenge tax assessments. Additionally, the multiple roles of the Municipal Board and the various other purposes that may be served by s. 54 in those other contexts must be kept in mind when interpreting the section. [ 78 ] Leaving aside the required precondition of whether SAMA’s alleged failure to follow the Committee’s directions on remittal could be considered a default within s. 54 , I find that an examination of the section, in its complete context, does not support the

interpretation urged upon us by Acklands-Grainger. A plain reading of s. 54 , done with the purposive approach in mind, reveals that the

section provides authority to the Municipal Board to authorize third parties to undertake tasks that an initial party was required to do but has failed to do. This

interpretation is buttressed by the wording in the

section that provides the Municipal Board with the authority to recover any expenses it incurs in retaining a third party to take the actions that were defaulted upon by the original party. While an enactment can apply to more than one situation, it is my view that the wording of s. 54 does not provide a method for monitoring and re- ordering the same party to comply. The language does not support an

interpretation that would permit the Committee to examine whether SAMA had complied, and, if it had not, re-order SAMA to comply and, presumably, continue to monitor SAMA and make subsequent orders until the Committee was satisfied that it had complied. [ 79 ] The remittal power was provided to the Committee long after s. 54 of the MBA was enacted. However, the Legislature is presumed to know how new enactments will function within the entirety of the existing legislative scheme.

But, even with a fair, large and liberal reading and construing the enactment in a remedial way, I cannot find that the Legislature intended s. 54 to operate as a mechanism for monitoring and enforcing the Committee’s directions from a remittal after a successful tax assessment appeal. Such a process cannot be shoehorned into the language of this section. [ 80 ] The Legislature provided the remittal power to the Committee in The Cities Act and The Municipalities Act , but chose not to include a method for the Committee to monitor compliance with remittal directions. That was the Legislature’s choice.

This Court cannot find a monitoring and enforcement system in s. 54 of the MBA when the language of the

section does not support its existence. [ 81 ] The legislative scheme does not provide a mechanism for continued oversight by the Committee once it has remitted a matter back to SAMA. The appeal must be dismissed. F. Availability of judicial review [ 82 ] As it stands, I have concluded that there is no statutory path for a taxpayer to obtain a remedy when they allege that SAMA has not complied with remittal directions after a successful appeal to the Committee.

While the taxpayer may again appeal in a subsequent tax year, that potential future remedy provides cold comfort to a person who, despite their success on appeal, cannot realize the benefit in the year to which the appeal related. However, this does not mean that actions taken, or not taken, by SAMA after the Committee remits a matter to it with directions are not subject to any oversight. Judicial review is available to fill this gap. [ 83 ] SAMA was established pursuant to s. 3 of The Assessment Management Agency Act , SS 1986, c A-28.1 , and is a creature of statute.

It has numerous obligations under its home statute, including those under s. 12. It also has obligations under s. 226(5) of The Cities Act and s. 256(5) of The Municipalities Act . Counsel for SAMA properly conceded that judicial review is available to review SAMA’s actions or inactions after a remittal by the Committee. To be clear, SAMA did not concede that judicial review would be successful in either of the two matters at hand, just that the procedure is generally available. [ 84 ] The Legislature has set up a comprehensive code dealing with municipal tax matters.

However, if, outside of the procedures that are provided for in that code, a person charged with a statutory obligation – such as SAMA in response to remittal directions – acts in an unlawful way, judicial review is available. It is my view that the Legislature did not intend that a person who believes that SAMA proceeded on an unlawful basis would have no remedy. To the contrary, the Legislature would assume that SAMA would act in a lawful manner, but that, if it failed to do so, taxpayers would have recourse.

Sections 53 and 54 of the MBA have been interpreted in light of the Legislature’s awareness of the availability of the Court of Queen’s Bench to supervise SAMA’s exercise of its statutory authority. [ 85 ] The rule of law demands a remedy when a state actor does not comply with the law. This includes a direction from the Committee upon remittal to SAMA. Judicial review of SAMA’s actions or inactions is available to a party who is dissatisfied with SAMA’s response after a remittal.

While judicial review may not be an attractive route for taxpayers who believe SAMA has not complied with remittal directions from the Committee, absent legislative amendment, it appears to be the only option available for the tax year that was the subject of an appeal. V. CONCLUSION [ 86 ] Both appeals are dismissed. The respondents, the City of Estevan and the Rural Municipality of Estevan No. 5, are awarded one set of costs in this Court for the appeal in CACV3576, plus one set of costs for the appeal in CACV3630.

Additionally, the respondents, the City of Estevan and the Rural Municipality of Estevan No. 5, shall have one set of costs for the application for leave to appeal in CACV3630. The respondent, the Saskatchewan Municipal Board, did not request costs and none are awarded. “Tholl J.A.” Tholl J.A. I concur. “Caldwell J.A.” Caldwell J.A. I concur. “Leurer J.A.” Leurer J.A.