Consumers Co-operative Refineries Limited c/o Federated Co-operatives Limited (SK) Applicant/Prospective Appellant (Appellant) v. City of Regina and Saskatchewan, 2021 SKCA 166

Court of Appeal for Saskatchewan Docket: CACV3845 Citation: Consumers Co-operative Refineries Limited c/o Federated Co-operatives Limited (SK) v Regina (City), 2021 SKCA 166Date: 2021-12-15Between:Consumers Co-operative Refineries Limited c/o Federated Co-operatives Limited (SK)Applicant/Prospective Appellant (Appellant)AndCity of Regina and Saskatchewan Assessment Management AgencyRespondents/Prospective Respondents (Respondents)Before: Jackson J.A. (in Chambers)Disposition: Application granted in partOn application from: 2021 SKMB 23, ReginaApplication heard: September 27, 2021Counsel: Leonard Andrychuk, Q.C., and Allison Graham for the Appellant Steven Dribnenki for the Respondent No one appearing for Saskatchewan Assessment Management Agency Jackson J.A.

I. Introduction [1] In this application, Consumers Co-operative Refineries Limited c/o Federated Co-operatives Limited (SK) [CCRL], seeksleave to appeal a decision of the Assessment Appeals Committee [Committee] of the Saskatchewan Municipal Board, namely ConsumersCo-operative Refineries Limited v Regina (City), 2021 SKMB 23 [Committee Decision]. This application for leave to appeal isbrought pursuant to s. 33.1 of The Municipal Board Act, SS 1988-89, c M-23.2 [MBA]. [2] CCRL is the owner of the Consumers Co-operative Refinery [Subject Property], located at 234 East 9th Avenue North, in theCity of Regina [City].

The Subject Property is zoned as heavy industrial by the City and is a regulated property for the purposes of taxassessment.

The land of the Subject Property is designated as non-primary industrial land and was valued using the cost approach tovalue. [3] The Committee Decision dismissed CCRL’s appeal from a decision of the Regina Board of Revision [Board] (Consumer’s Co-operative Refineries Limited v Regina (City) (31 July 2020) Regina, Appeal No 2020-28790 (Regina Board of Revision) [BoardDecision]), pursuant to s. 216 of The Cities Act, SS 2002, c C-11.1, which in turn had dismissed an appeal from a decision of the Assessorfor the City. [4] The Board described the issues as being whether the Assessor had “erred in the Land Size Multiplier [LSM] curve” thatapplied to the land assessment and whether equity had been “achieved in this assessment” (at 2).

The underlying issues relate to theAssessor’s determinations of the base land rate [BLR] and standard parcel size [SPS]. [5] CCRL’s application for leave to appeal is opposed by the City. The Saskatchewan Assessment Management Agency[SAMA], which is a party pursuant to s. 35 of the MBA, does not take a position in this application. [6] For the reasons that follow, I have determined that leave to appeal should be granted with respect to two of the four questionsraised by CCRL. II.

Jurisdiction and standard of review [7] The parties agree with respect to the jurisdiction of a Court of Appeal Chambers judge under s. 33.1 of the MBA and thestandard of review to be applied: see Saskatoon (City) v North Ridge Developments Corporation, 2015 SKCA 13 at para 55 [North Ridge],and Saskatoon (City) v Victory Majors Investments Corporation, 2019 SKCA 51 at paras 33–34 [Victory Majors]. [8] In North Ridge, I made these observations regarding the test to apply: [50] … the Chambers judge must decide whether he or she is sufficiently concerned about the correctness of a decision to warrantgranting leave, including determining whether the appeal is prima facie destined to fail, and must also consider importance. … [51] The Court continues to take a robust view of whether leave should be granted (see, e.g., Gunner Industries [2007 SKCA 92] andBehenna [2012 SKCA 14]).

In these and other decisions, the Chambers judge did not hesitate to examine the merits of the proposedappeal in some detail in support of the decision refusing leave. This is consistent with Chambers jurisprudence arising both before Schalk(Regina Racquetcourts North Inc. v The City of Regina, 2000 SKCA 65 at paras 8 to 11) and after Schalk (Laing [ (SKCA), [1995] 3 WWR 551] at paras 8 and 9, Regina (City) v Gordstone Enterprises Ltd., 2003 SKCA 36 [Gordstone], and Andros [2004SKCA 132]). If leave is granted, the language typically is more circumspect: see Ipsco Inc. v RM of Sherwood No. 159, 2001 SKCA 4,

203 Sask R 152; and Kramer Ltd. v Rural Muncipality of Sherwood No. 159 , 2001 SKCA 5 , 203 Sask R 68, and from time to time the decision granting leave results in an endorsement only. … [55] In sum, Rothmans [2002 SKCA 119] establishes the framework to consider applications for leave to appeal made pursuant to s. 33.1 of The Municipal Board Act , with minor adjustments.

In that regard, it may be helpful to restate the Rothmans framework emphasizing the core considerations of merit and importance as they relate to an application for leave to appeal under s. 33.1 of The Municipal Board Act : First : Is the proposed appeal of sufficient merit to warrant the attention of the Court of Appeal? • is it prima facie frivolous or vexatious? • is it prima facie destined to fail in any event, having regard to the nature of the issue and the scope of the right of appeal, for instance, or the nature of the adjudicative framework, such as that pertaining to the exercise of discretionary power?

Second : Is the proposed appeal of sufficient importance to the field of practice or the state of the law, or to the administration of justice generally, to warrant determination by the Court of Appeal? • does it materially affect the impugned order or decision? • does it raise a new or controversial or unusual issue? • does it raise a new or uncertain or unsettled point of law? • does it transcend the particular in its implications?

The questions raised under each heading are intended to aid in the assessment of the considerations of sufficient merit and importance, and are not meant to be exhaustive. (All emphasis in original) [ 9 ] In Lepage Contracting Ltd. v Saskatchewan (Employment Standards) , 2020 SKCA 29 , Barrington-Foote J.A. referred to both North Ridge and Victory Majors .

While Barrington-Foote J.A. was considering an application for leave to appeal a decision of the Saskatchewan Labour Relations Board to the Court of Appeal, his comments are also apt in this context: “it is sometimes necessary for the application judge to examine the merits of the proposed appeal in some detail, while keeping in mind that the decision on the merits is for the panel that hears the appeal, and that the application judge should accordingly be circumspect in commenting on the merits of those grounds for which leave is granted …” ( Lepage at para 25). [ 10 ] I have considered the within application with the above principles in mind.

III. Grounds of appeal [ 11 ] The proposed grounds of appeal put forward by CCRL are as follows: (

a) The Committee erred in law by requiring the appellant to allege: (

i) a proposed remedy; (ii) error in the Assessor’s proposed remedy; and/or (iii) error in the decision of the Board of Revision, in its Notice of Appeal to the Board of Revision. (

b) The Committee erred in law and/or principle by deferring to Assessor discretion: (

i) after error in the assessment had been admitted; (ii) on positions taken during the appeal; and/or (iii) on the Assessor’s proposed remedy. (

c) The Committee erred in its

interpretation and application of the Cost Guide and this Court’s decisions in Consumers Co-operative Refineries Limited v Regina , 2020 SKCA 111 , and GMRI Canada Inc. v Regina [ sic ], 2009 SKCA 145 in relation to the determination of the Base Land Rate, Standard Parcel Size and Land Size Multiplier Curve. (

d) The Committee erred in law or exceeded its jurisdiction by failing to consider or address the appellant’s arguments and/or by failing to consider relevant matters by misconstruing the appellant’s arguments. [ 12 ] During oral argument, counsel for CCRL asked that (

c) be amended to read as follows: (

c) The Committee erred in its

interpretation and application of the Cost Guide , a number of the Committee’s decisions, and this Court’s decisions in Consumers Co-operative Refineries Limited v Regina (City) , 2020 SKCA 111 , and GMRI Canada Inc. v Saskatoon (City) , 2009 SKCA 145 in relation to the determination of the Base Land Rate, Standard Parcel Size and Land Size Multiplier Curve .

[ 13 ] CCRL has put forward one argument that pertains, in my view, to each of (

a) and (b), as well as additional arguments pertaining to each of these grounds. I will address the common argument that is applicable to (

a) and (

b) before addressing each of these two grounds separately. I have decided that leave to appeal should not be granted in relation to either grounds (

a) or (b). [ 14 ] It is with respect to grounds (

c) and (

d) that I have determined leave should be granted. IV. CCRL’s contention of a fundamental flaw : Grounds (

a) and (b) [ 15 ] Underpinning grounds (

a) and (

b) is what CCRL asserts is a fundamental flaw in each of the Board and Committee Decisions . I agree with CCRL that, if I am persuaded that these two decisions are the product of the fundamental error alleged, leave to appeal should be granted in relation to all grounds of appeal. Regrettably, and with respect, I am not so persuaded. [ 16 ] I will begin first by indicating my understanding of CCRL’s arguments regarding the suggested flaw, before providing my reasons why I find no merit to them. A.

CCRL’s description of the fundamental flaw [ 17 ] In its response to CCRL’s appeal to the Board, the Assessor acknowledged it had mistakenly treated what should have been one sale as two transactions in its initial assessment. It should have used seven sales rather than eight as a basis of calculation: i.e., a “new vacant industrial land analysis was completed for Study Area 5208”. As a result, the Assessor “recommend[ed] this land model be applied to Study Area 5208 and those vacant Industrial land parcels in Study Area 5203 which are 40 acres and greater” be recalculated.

This change resulted in an SPS of 500,000 square feet (11.5 acres), a BLR of $4.34 and a LSM curve of 103%. The result of the change in the LSM was to reduce the assessed value from $291,543,500 to $278,543,112. [ 18 ] Before the Assessor’s admission of error, CCRL had asserted that the Assessor had not followed the SAMA’s 2015 Cost Guide , ver 1.3 (1 January 2020) (Regina: Saskatchewan Assessment Management Agency, 2015) at 2.2 [ Cost Guide ], or decisions of this Court and of the Committee in determining the assessment.

After the Assessor’s admission of error, CCRL submitted to the Board that the “Assessor’s methodology be given zero weight especially since the Assessor has admitted that the assessment on the assessment roll for the subject property is excessive”. Instead, and in addition to its initial suggested remedies, it asked that the Board accept its proposed remedy, namely that the BLR be $4.39 per square foot, the SPS be 100 acres (4,356,000 square feet) and the LSM be 130%. [ 19 ] CCRL argued that the Assessor had erred by “(

a) basing the BLR on the mean of the sales, rather than the median, (

b) using the seven sales to calculate the BLR and the LSM, (

c) determining the SPS using land inventory rather than sales, and (

d) failing to account for diminishing returns”. It provided the Board with two remedies: “(

a) use the median BLR, a 2,369,169 square foot (55 acre) SPS and 112% LSM based on the eight (8) sales in Study Area 5208; or (

b) use the 120% LSM from the Urban Holding Study Area”, where urban holding is a specific classification of land use (which differs in zoning from the classification of heavy industrial). [ 20 ] CCRL submitted to the Committee that after the Assessor had admitted error, the City and CCRL were on an even footing before the Board. The only question was remedy. The Assessor recommended a new LSM and a reduction in the assessment. CCRL put forward its remedies, namely those indicated in the previous paragraphs.

In other words, the Assessor’s recommended model should have been accorded no deference and the Board could look at the data on its own and arrive at its own decision. According to CCRL, neither the Board nor the Committee “understood or grappled with the Assessor’s admission of error in its sales analysis”. [ 21 ] In this Court, CCRL asserts the following: 43. At their heart, the fundamental flaw in the BOR and the Committee Decisions is this. The Assessor admitted to error in the Initial Assessment. It put forward the Assessor’s Recommended Model as a potential remedy. CCRL presented its own suggested remedies.

But, rather than consider which suggested remedy to accept, the BOR and the Committee treated the Assessor’s Recommended Model as the Initial Assessment and put the onus on CCRL to prove error in that Recommendation and overcome assessor discretion. They did not treat the Assessor’s Recommended Model and CCRL’s Proposed Remedy as two remedial options . This was a significant legal error that infected the BOR and the Committee’s treatment of the evidence and argument of both CCRL and the Assessor/City. (Emphasis added) B.

Consideration of the fundamental flaw argument [ 22 ] I fail to see how the Assessor’s admission of error could open the door to the wholesale re-analysis that CCRL submits. At the heart of CCRL’s remedial suggestions is that the Assessor used the wrong data from which to develop the LSM curve. This was its submission before and after the admission of error. But the Assessor did not change its methodology – it used the same study area (i.e., the same group of properties that were identified as having similar attributes) and treated the sales in the same manner.

The Assessor changed one sale in that study area only – and that change resulted in a benefit to CCRL. To my mind, in such circumstances, CCRL’s submissions on this point have no merit. With this as the base line for these reasons, I will now address the specific grounds of appeal as taken from the proposed notice of appeal. V. Notice of appeal requirements before the Board: Ground (a)

[ 23 ] CCRL states, “this ground of appeal relates to the conclusions by the [Board] and the Committee that CCRL was prohibited from suggesting Urban Holding as a remedy by the [Board] and from asserting error in the [Board] Decision before the Committee”. [ 24 ] CCRL makes these discrete arguments: (

a) it was prohibited from suggesting the use of the neighbourhood zoned as urban holding as a remedy to the Assessor’s calculation error and from asserting error in the Board’s decision before the Committee; (

b) the Board erred by deciding that the issue of urban holding was not properly before the Board, as the Board held that it was not raised in the notice of appeal nor was there an application brought to amend the notice of appeal to raise the issue; and (

c) the Committee erred by holding that the Board considered the comparability of urban holding despite the Board’s statement to the contrary. [ 25 ] In support of these arguments, CCRL submits that the Board and the Committee ignored past jurisprudence. Previous decisions have held that an appellant is not required to assert a solution in its notice of appeal and that an appellant is required to do no more than point to an error in the assessment: Meadow Lark Housing Co-operative Ltd. v Regina (City) (13 September 2006) Regina, AAC 0091/2005 (Sask Assessment Appeals Committee).

CCRL submits that this ground of appeal, relating to what must be raised in the initial notice of appeal before the Board and the corresponding

interpretation of if known , in The Cities Act , have importance that transcends beyond the four corners of this case. CCRL submits that its notice of appeal before the Board complied with the requirements set out in s. 197(6) of The Cities Act , and s. 197(6) (

c) specifically provides that requested changes to the assessment roll must only be included if known by CCRL at the time.

CCRL argues that it does not bear the burden of proving the correct assessment, relying on Kolitsas Holdings Ltd. v Regina (City) , 2003 SKCA 74 , [2004] 1 WWR 68. [ 26 ] In my respectful view, CCRL makes a submission that is not borne out by the Committee Decision and does not reflect what happened before the Board or take into account the latter’s reasoning. [ 27 ] Specifically, the Board reasoned as follows (at 5–6): The Agent [CCRL] has pointed out that the Assessor has admitted error, due to the fact that a recommendation has come forward. He is not satisfied that a 103% LSM curve is appropriate though.

He puts in issue the Assessor’s use of discretion in this case. It is the Agent’s view that the Assessor could use neighbourhood 5208 for the base land rate and standard parcel size and then use a land size multiplier curve from another neighbourhood. The subject property is physically located in study area 5203. In that neighbourhood, all parcels 40 acres and over are assessed using the comparable neighbourhood method, using study area 5208 (the Global Transportation Hub).

The Assessor’s analysis indicates that using principles of mass appraisal, an LSM curve should be applied after parcels reach a size of 500,000 square feet, as he has sales to establish that curve. In mass appraisal the Assessor looks to the curve of closest fit. It would be inaccurate to attempt to force a curve to “hit” the largest sale in a data set. To apply a mixture and variety of models does not fit the terms of mass appraisal . The base land rate, standard parcel size, and land size multiplier curve, must all come from the same neighbourhood .

If there are not sales within the neighbourhood to determine all of those, then a comparable neighbourhood has to be applied. In determining a comparable neighbourhood, it is a matter of discretion. The neighbourhood must truly be comparable. Land with different servicing, different zoning, and other different features, is not comparable . The Assessor has the right to make this judgment call. The issue of urban holding is not relevant to this appeal. There was no application to amend the Notice of Appeal, and the Board is not going to consider it as an option.

It is simply mentioned in this appeal decision as it was raised by the parties in the presentation of the appeal, with the Assessor objecting to it, and given the opportunity to reply. In any event, it has no application to this case. Not only is it irrelevant, there was no application made at the hearing to amend the Notice of Appeal to consider it . In this case, the Assessor has put his mind to the directions of the Court of Appeal in Bison Properties Limited [2008 SKCA 158], and the legacy of cases that precede that, that provide for the Assessor’s discretion as the backbone of the assessment process.

While the Assessor has made a recommendation arising out of new information received that creates one sale out of two, he has re-calculated the land size multiplier curve as a result of that and recommended that change. The Board is unable to find an error in the assessment, other than that identified by the Assessor that comes along with a recommendation for change. The Assessor has properly employed mass appraisal techniques, he has properly exercised his discretion in determining comparability, and applied the assessment to comparable properties throughout the relevant neighbourhoods.

As such, equity has been achieved. (Emphasis added) [ 28 ] I read these reasons as saying that the urban holding issue was not relevant to the appeal because there was no legal basis for it. I take the Board as saying that (

a) the Assessor cannot take a BLR and an SPS from one neighbourhood and an LSM curve from another, and (

b) to be comparable, a proposed neighbourhood cannot have “different servicing, different zoning, and other different features”. [ 29 ] This is also how the Committee interpreted the Board Decision : [21] Altus Group Limited (Altus), as agent for the Appellant, took the position that proper comparable property would be urban land holdings. Urban land holdings are unserviced and, as the Assessor described, are intended to provide an orderly transition from agricultural land to other areas planned for eventual urban redevelopment .

The Board found that the Assessor had properly exercised his discretion in determining comparability. That conclusion is reasonable based on the evidence before the Board and we will not interfere. [22] There is another reason why this ground cannot succeed. The Board found that the matter of urban land holding analysis was not raised in the appeal. The Board found that there was no application to amend the NOA, and the Board was not going to consider it an

option. The Board heard the information from Altus and allowed the Assessor to respond. The Board found urban holdings were irrelevant and no application was made to amend the NOA . [23] We note that the approach adopted by the Board was somewhat inconsistent. At the hearing, the Board ruled it would not restrict Altus from raising the concept of urban holdings (see Transcript of the Board Hearing at page 32, lines 3–13).

In our view, the finding by the Board that the urban holdings were not a comparable property is sufficient to address this ground of appeal . (Emphasis added) [ 30 ] Thus, I would conclude that even if the Board had made the error that CCRL alleges, the Committee addressed the issue by concluding that urban holdings were not a comparable neighbourhood. [ 31 ] In its written argument, CCRL asserts further: 63. … what an appellant is required to allege in its initial Notice of Appeal to the [Board] is a significant issue in the assessment appeal regime .

This Court has found that the Notice of Appeal plays a “foundational role” ( Corman Park (Rural Municipality) v 618421 Saskatchewan Ltd. , 2018 SKCA 29 at para 34 ). If an appellant must somehow determine the correct assessment when it files its Notice of Appeal – which is before the appellant even receives the “written explanation” of the assessment from the Assessor under s. 200(4) of the Cities Act – or predict errors in proposed remedies or the [Board’s] decision, this will considerably affect how appellants frame their appeals. In particular, any

interpretation of “if known” in s. 197(6)(

c) will have significance that far transcends the particulars of this matter. (Emphasis added) [ 32 ] In my respectful view, however, this submission is not tied to what actually happened. As indicated, the Assessor identified an error and proposed a remedy. Neither the Board nor the Committee held that CCRL must determine the correct assessment when it files its notice of appeal. But what CCRL was suggesting was a fundamentally different approach to the assessment, i.e., that the Assessor should consider urban holdings in how it arrived at the tax assessment for the Subject Property. That is a hardly a remedy for the Assessor’s identified error. [ 33 ] In

summary, while it is possible to cast the suggested ground of appeal as a question of law, there is no merit to it. It does not meet the test in North Ridge and Victory Majors . In my view, it is destined to fail. VI. Deferring to assessor discretion: Ground (b) [ 34 ] CCRL notes that discretionary decisions made by an assessor on the path to an assessment are entitled to deference, but that there are limits to such deference. For example, in Saskatoon (City) v Walmart Canada Corp. , 2018 SKCA 2 at para 124 , this Court held that an assessor’s

interpretation of legislation will not be entitled to deference, while in Consumers Co-operative Refineries Limited v Regina (City) , 2020 SKCA 111 [ CCRL 2020 ], this Court noted that an assessor discretion is not “completely unfettered or unlimited” and must be exercised in accordance with the applicable principles and criteria that bear on the decision at hand (at para 82). [ 35 ] CCRL specifically argues that, in light of the above-mentioned decisions – and Weyburn (City) v Walmart Canada Corp. , 2017 SKCA 110 – deference ought not to be afforded to arguments or statistical analyses that seek to support or justify the initial assessment on appeal, or when the initial assessment was shown to be erroneous.

CCRL submits that this logic should be extended to any remedy suggested by an Assessor in response to an erroneous assessment and argues that the Board and the Committee each erred by showing deference to the Assessor’s suggested remedy of a recalculation.

Specifically, CCRL argues that this led to the Board failing to evaluate the suggested remedies advanced by the parties. [ 36 ] CCRL submits that the Committee erred in law by failing to engage with whether the assessor’s recommendation ought to have been shown deference in light of the admitted error in the initial assessment and submits that this question is one of sufficient importance to be addressed by this Court. [ 37 ] This is a refinement of CCRL’s arguments in relation to the “fundamental flaw”, which focusses on the limits of Assessor discretion.

I would not want to rule out the possibility of casting as a question of law whether the Committee erred by relying on the Assessor’s discretion in the development of a new assessment, where the original assessment was found to be in error. In this application, however, I am not satisfied that CCRL has shown error. [ 38 ] I say this because the Assessor’s error did not change its fundamental approach to how the assessment was conducted.

To me, CCRL is putting forward an impossible submission that the whole of the Assessor’s work is called into question and can be redone by the Board or the Committee simply because the Assessor discovered an error in the valuation of one of the comparator parcels and rectified it to the benefit of the taxpayer. [ 39 ] In my view, this argument is destined to fail. VII.

Interpretation and application of other law: Ground (c) [ 40 ] CCRL next argues that the Committee erred in its

interpretation and application of the Cost Guide , various Committee decisions, CCRL 2020 and GMRI Canada Inc. v Saskatoon (City) , 2009 SKCA 145 , [2010] 6 WWR 229 [ GMRI ], in relation to the determination of the BLR, SPS and LSM curve. A. Parties’ position on BLR, LSM and SPS

[41] After setting out the appropriate approach to calculating a BLR, and applying an LSM curve using the Cost Guide, CCRLsubmits that the Assessor’s calculations of these figures were not determined in compliance with the Cost Guide or what it says arebinding decisions from the Committee and this Court.

CCRL further submits the Board concluded that the Assessor appropriately appliedmass appraisal techniques without considering CCRL’s arguments related to the calculations performed by the Assessor. [42] As to the Committee’s decision, CCRL argues that the Committee also failed to address CCRL’s arguments related to theAssessor’s calculations and merely agreed with the Board that there was no error in the methodology used by the Assessor and madeconclusory statements that the Board properly considered and applied the relevant case law. [43] CCRL then sets out four distinct errors of law allegedly made by the Committee: (

a) the BLR should be the median of the sales, when it is submitted that the Assessor used a mean; (

b) the BLR and LSM curve cannot be determined from overlapping sales, but it is submitted that the Assessor used overlappingsales; (

c) the SPS cannot be derived from land inventory and must be based on sales, but it is submitted that the Assessor impermissiblyused land inventory to determine this figure; and (

d) the BLR should be established from typical per unit land parcel sales and the SPS is the point at which values per square footbegin to decline as size increases, whereas it is submitted that the Assessor approached the SPS as the typical parcel. [44] I will review each of the sub-issues identified above according to the above headings, but, as I have decided to grant leave inrelation to this ground, I will be circumspect in my comments. 1. BLR as the median of sales [45] CCLR submits that the “BLR should be calculated using the median”.

In support, it relies on North Prairie Developments Ltd.v Martensville (City), 2019 SKMB 78 at para 28 [North Prairie], and 101180374 Saskatchewan Ltd. v North Battleford (City),2014 SKMB 33 . It asserts that the Assessor did not use the median in this case. [46] In my

interpretation of the City’s response, it does not deny that the Assessor did not use the median. Instead, it makes thesethree arguments in support of the Assessor’s approach and to say there is no reversible error in the result: (

a) the SPS in “Study Area 5208 is based on four sales from Study Area 5208 which had an average of 501,239 square feet andmedian of 514,707 square feet and is supported by the frequency analysis”; (

b) if there is an error to be found, such an error in the assessment has been applied “uniformly and fairly” and, thus, “equity hasbeen achieved” (s. 210(3) of The Cities Act); and (

c) even if equity was not achieved, the Assessor may still establish that its assessment is reasonable. 2. BLR and LSM from overlapping sales [47] CCRL asserts that the BLR and the LSM cannot be determined using the same sales data, because Committee decisions haveprecluded this from being done.

CCRL cites Various (Altus) v Moose Jaw (City), 2020 SKMB 19 , where the Committee recentlywrote as follows: [27] We must also keep in mind our decision in AAC 2013-0085 (Lead) and AAC 2013-0082, 101180374 Saskatchewan Ltd. and HomeHardware Stores Ltd. v North Battleford (City) [2014 SKMB 33], where we found, at paragraph [17], it would be an error to use the samesales to establish the BLR and also the LSM: [17] The Appellant’s position is that [North Battleford] made an error in assessment practice in valuing the subject property. [NorthBattleford] as assessor warranted an adjustment for size for the two larger lots when [it] analyzed the sales array.

That being the case, thebase land rate calculated is the median per-square-foot sale rate of the three smallest, typical properties.

The assessor then calculates theadjustment for size (LSM curve) by comparing the sale rate of the two largest or outlying parcels to the base land rate. [North Battleford]used all five sales in the array to determine the base land rate, and then used the sales of the two largest lots again to calculate the LSMcurve used to adjust the assessed value of the subject property for size; this was his error. (Bold emphasis in original, italic emphasis added in North Battleford) [48] The City makes no direct response to this argument, instead relying on the Assessor’s discretion, the achievement of equity andthe reasonableness of the result. 3.

SPS from land inventory rather than from sales [49] CCRL states, as a matter of law, that the SPS cannot be derived from land inventory but must be based on sales. Various(Altus) v Prince Albert (City), 2019 SKMB 48 , is cited as authority for this proposition. In Prince Albert, the Committee wrote asfollows: [53] In short, we agree with Altus. Altus provided evidence to the Board, including appropriate reference to GMRI Canada Inc. vSaskatoon (City), 2009 SKCA 145, as proof.

We concur with Altus’ argument before the Board that “… applying a [SPS] that does notreflect the sales … produces a land value that does not reflect the typical market conditions of the sales used …”. We find that without arelationship to the sales evidence used to calculate the LSM curve (size adjustment), the SPS becomes unreliable.

[54] The City argued that

section 2.5 of the Cost Guide [ver 1.1] does not require the SPS to be calculated from sales data. We disagree forreasons that follow. [55] First,

section 2.5 (and

section 2.2) of the Cost Guide are describing a sales comparison method in determining land assessed values.Sales (emphasized above) is the key word and relates to [The Cities] Act’s requirement that assessments be representative of market value[see subsections 163(f.1)(ii) and (iii), the [market valuation standard]]. [56] Last,

section 2.5 of the Cost Guide refers the user back to

section 2.2 in this way: Determine: the standard parcel sale price per unit in accordance with No. 2.2 – Base Land Rate, Sales Comparison Method”. In describingthe sales comparison method, the Cost Guide consistently refers to land sales throughout, including Step No. 1: “Identify land sales, whichare representative of the typical parcel in the neighbourhood”. [57] We find that assessment practice in Saskatchewan, using the Sales Comparison Method, requires the SPS to be determined from salesdata used to calculate the LSM curve. Both the LSM curve and SPS are representative of size adjustments, which is the adjustment theCost Guide speaks to at

section 2.5. Whether or not the SPS and LSM curve are determined within a property’s neighbourhood, or theAssessor chooses a comparable neighbourhood, a relationship must be maintained for both size adjustments. The market value system inSaskatchewan dictates related sales data be used in both determinations. (Italic emphasis in original, underline emphasis added) [50] This argument was made before the Board and the Committee in this case. The Committee addressed it in this manner: [24] We first note that based on the Appellant’s submission before the Board, it appears that Altus remarked on two cases.

The first wasVarious (Altus) v Prince Albert (City), 2019 SKMB 48 [Prince Albert] (our decision for AAC 2017-0489 (Lead)) and the secondwas GMRI Canada Inc. v Saskatoon (City), 2009 SKCA 145 [GMRI]. [25] In Prince Albert, the facts differed from the present case. The Prince Albert Assessor had no sales in the subject [neighbourhoods(NBHD)] and used a comparable NBHD to establish the BLR and LSM. The Assessor then looked to the median parcel size of the landinventory within the subject NBHDs to decide on the SPS.

The differing SPS amounts did not bear a relationship to the land sales used toderive the BLR and LSM, and contradicted the sales evidence (see Prince Albert at paragraph [51]). In the appeal currently before us, theCity Assessor used a comparable NBHD and employed an SPS that is within the range of the sizes of the sales. The 500,000 square footSPS is the point on the graph of the seven sales that is also used to determine the LSM. Therefore, there is a relationship between the salesand the BLR, SPS and LSM. The Prince Albert Assessor’s error has not been made by the Assessor in this appeal.

We see no error in theBoard’s decision on this point. [51] The City submits that the Committee made no error. 4. Other alleged errors in the SPS and the BLR [52] CCRL asserts that the BLR should be established from typical per unit land parcel sales and the SPS is the point at whichvalues per square foot begin to decline as size increases.

In support, it looks to GMRI, where this Court found that the largest typical saleshould be used to determine the SPS. [53] On this point, the Committee wrote as follows: [26] GMRI was not mentioned by the Board in its analysis, nor is it listed as one of the cases that the Board “misapplied or found notrelevant”. All assessment cases are factually specific and reliance on case law must be grounded in substantially the same factual matrix asthe case proffered as relevant or determinative of an issue. In this instance, GMRI was decided under the previous fully regulatedassessment system.

The subject property’s land assessment was derived under the current unregulated regime. It is our view that the Boardproperly considered the case law presented to it and did not misapply or ignore any relevant case law. [54] The City asserts the Committee did not err. Among other arguments, it submits that the Assessor found that the SPS is basedon the typical parcel size, not the point at which values begin to decline, and this opinion should be respected as falling within the realm ofthe discretion accorded to the Assessor. B. Analysis: BLR, LSM, and SPS [55] How CCRL couches its

interpretation and application of prior law argument (i.e., ground (c)) is not without difficulty – but thisground’s link with ground (d) (failing to consider and misconstruing CCRL’s arguments) causes me to conclude that leave to appealshould be granted in relation to both. [56] I say that ground (

c) is not without difficulty because CCRL has cloaked its four issues as questions of law in such a manner asto give the appearance that there could be no disagreement with the statements as law. Some of these assertions appear to bear a closerrelationship to evidence than to argument – made to shore up legal arguments, with CCRL’s agent giving evidence. However, CCRLcalled no expert evidence with respect to the factual foundation of these propositions – and treats the case law and the Cost Guide asauthoritative stand-alone propositions of law that could lead to one result only.

All of this calls into question whether this ground of appealhas a sufficient evidentiary foundation. [57] That said, the Court is left with reasons that do not appear to reveal the logic of the Board. And the Board did not challengeCCRL’s agent with respect to his submissions of law. Instead, the Board reduced CCRL’s issues down to the following two questions:“Has the Assessor erred in the LSM curve applied to the land assessment?” and “Has equity been achieved in this assessment?” (at 2). [58] This may be perfectly acceptable, but the Board did not engage with CCRL’s complaints about the calculation of the BLR,

LSM curve or the SPS, other than in general terms: “the Assessor has put his mind to the directions of the Court of Appeal in Bison Properties Limited, and the legacy of cases that precede that, that provide for the Assessor’s discretion as the backbone of the assessment process” and the “Board is unable to find an error in the assessment, other than that identified by the Assessor that comes along with a recommendation for change” (at 6). [ 59 ] To its credit, the Committee did discuss each of the issues that CCRL had identified in its notice of appeal to it: [8] We have distilled the grounds of appeal advanced by the Appellant to the following questions: …

b) Did the Board err by finding the Assessor followed standard appraisal practice and the methodology/process outlined by the SAMA 2015 Cost Guide , Version 1.3 (Saskatchewan: Saskatchewan Assessment Management Agency, 2020) [ Cost Guide ]?

c) Did the Board err by finding the Assessor used discretion appropriately in determining comparable sales to establish the subject property’s valuation?

d) Did the Board err by misapplying or finding case law submitted by the Appellant not relevant to the subject appeal?

e) Did the Board err by failing to find the Assessor failed to utilize the “curve of closest fit” as described on page 6 of the Board’s decision? [ 60 ] The Committee also addressed why it held that what the Assessor did not, by considering both sales and inventory, contravene prior authority. Whether it did so without legal error is another matter.

Further, it appears that the Committee did not address CCRL’s specific arguments identified above regarding median sale, overlapping sales and determination of a typical parcel. [ 61 ] Turning back to the application of the standard for granting leave, applying the test from North Ridge and Victory Majors , I cannot say that this ground of appeal is prima facie destined to fail. Linked as it is to ground (d), the proposed ground of appeal is neither frivolous nor vexatious, nor is it prima facie destined to fail.

While the City argued the proposed grounds of appeal do not raise questions of law, as required by s. 33.1 of the MBA , I am not persuaded that is clearly so. As to its importance, I note that this ground of appeal raises a new issue, notably the extent to which the Board (and the Committee) is required to engage with the component parts of an assessment or whether it is sufficient to consider the Assessor’s decision in more general or global terms. Thus, I have decided that leave should be granted in relation to it. VIII. Failing to consider or misconstruing CCRL’s arguments: Ground (d) 1.

CCRL’s position on its ignored arguments [ 62 ] CCRL’s final proposed ground of appeal is that the Committee erred by failing to consider or address its arguments and by failing to consider relevant matters by misconstruing its arguments. [ 63 ] CCRL takes issue with the fact that the Committee distilled its arguments to specific questions, rather than addressing each of its grounds of appeal. CCRL then submits that the Committee failed to address any of its arguments related to the Board’s misapplication of case law or its decision that the case law cited was not relevant to the appeal.

CCRL argued before the Committee that the Board’s decision contained logical inconsistencies that were not reasonable and argued that the Board misconstrued the evidence and arguments before it. [ 64 ] CCRL submits that the Committee erred by failing to address whether the Board Decision was justified and justifiable in accordance with a reasonableness standard of review, ignored that CCRL had cited numerous other cases to the Board than those referred to in the Committee Decision , and failed to engage with the argument that the Board misapplied the case law. 2.

The City’s position [ 65 ] The City specifically submits that the Committee did address the issues before it and that this ground of appeal is merely a catch-all in relation to each of the other proposed grounds in the proposed appeal before this Court. The City submits that the key issues before both the Board and the Committee related to the calculation of the LSM curve and equity, which were addressed by both the Board and the Committee.

The City frames CCRL’s position on each of the grounds of appeal as one seeking to show that its remedy is preferable to that suggested by the Assessor, but that CCRL provided no expert evidence to prove its position.

The City also states that the fundamental aspects of CCRL’s proposed remedy were considered and rejected by both the Board and the Committee. [ 66 ] The City notes that CCRL was not precluded from raising the issues it wished to raise before the Committee, despite the deficiencies in its notice of appeal, and that those issues were substantively considered by the Committee. [ 67 ] Finally, the City contends that CCRL has misframed the issues on these appeals and that the Committee was alert to this.

The City points to the fact that the Committee held that the issue was not whether CCRL’s position would lead to a superior assessment but rather, whether the Board’s decision was reasonable. The Committee found that the Board Decision was reasonable and thus rejected CCRL’s arguments. The City submits that CCRL simply disagrees with the results of the decisions made by the Board and the Committee and such a disagreement cannot give rise to a distinct ground of appeal. 3. Analysis of the arguments before the Board and Committee

[ 68 ] The foundation of both (

c) and (

d) is the question of whether the Committee erred by failing to find that the Board erred by not addressing the specific issues raised by CCRL in its argument regarding the BLR, the SPS and the LSM curve or whether it is sufficient to find the Board’s conclusions to be reasonable. I agree with CCRL that leave should be granted in relation to this ground of appeal linked as it is to the previous ground. IX. Conclusion [ 69 ] Leave to appeal is granted with respect to grounds (

c) and (

d) above. I will re-letter and restate them here: (

a) The Committee erred in its

interpretation and application of the Cost Guide , a number of the Committee’s decisions, and this Court’s decisions in Consumers Co-operative Refineries Limited v Regina (City) , 2020 SKCA 111 , and GMRI Canada Inc. v Saskatoon (City) , 2009 SKCA 145 , in relation to the determination of the Base Land Rate, Standard Parcel Size and Land Size Multiplier curve. (

b) The Committee erred in law or exceeded its jurisdiction by failing to consider or address the appellant’s arguments or by failing to consider relevant matters by misconstruing the appellant’s arguments or both. [ 70 ] Costs are left to the division of the Court hearing the appeal. “Jackson J.A.” Jackson J.A.