Brandt Properties Ltd. Appellant (Appellant) v. City of Saskatoon, 2021 SKCA 19

Court of Appeal for Saskatchewan Docket: CACV3437 Citation: Brandt Properties Ltd. v Saskatoon (City) , 2021 SKCA 19 Date: 2021-02-01 Between: Brandt Properties Ltd. Appellant (Appellant) And City of Saskatoon Respondent (Respondent) Before: Ottenbreit, Leurer and Barrington-Foote JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Mr. Justice Leurer In concurrence: The Honourable Mr. Justice Ottenbreit The Honourable Mr.

Justice Barrington-Foote On appeal from: 2019 SKMB 32 , Saskatoon Appeal heard: November 4, 2020 Counsel: Kurt Wintermute for the Appellant Alan Rankine for the Respondent Leurer J.A. I. Introduction [ 1 ] This appeal concerns the municipal taxation of certain large warehouses located in the City of Saskatoon [City].

Their owners, represented on this appeal by Brandt Properties Ltd., contend that the assessment model was based on an artificial distinction that had no connection to the market value of their properties when compared to other comparable properties. [ 2 ] The owners’ appeal to the Saskatoon Board of Revision [Board] was dismissed ( Various (Altus) v Saskatoon (City) (18–19 October 2017) Saskatoon, Appeal No 509-2017 (Lead) [ Board Decision ]), as was their subsequent appeal to the Saskatchewan Municipal Board Assessment Appeals Committee [Committee] ( Various (Altus) v Saskatoon (City) , 2019 SKMB 32 [ Committee Decision ]). [ 3 ] Leave to appeal to this Court has been granted on issues of law that flow from the owners’ contention that the Committee erred by failing to identify a fundamental misunderstanding on the part of the Board relating to the evidence before it. [ 4 ] In my respectful view, the Committee erred in law in its review of the Board’s treatment of the owners’ evidence and by failing to grapple with arguments made by the owners that the assessment model was not based on value-driving characteristics as demanded by The Cities Act , SS 2002, c C-11.1 [ Cities Act ].

I would remit the matter back to the Committee for determination in accordance with this judgment. My reasons follow. II. Background A. The capitalization rate model [ 5 ] This appeal relates to the 2017 and 2018 municipal property tax assessments of the owners’ warehouses. It is important to an understanding of the issues in this appeal that 2017 and 2018 property taxes were to be based on an assessed value as of a base date of January 1, 2015. [ 6 ] The City’s assessor valued the warehouses using a “direct capitalization of market net operating income” approach ( Committee Decision at para 3).

This approach required the determination of a capitalization rate, or “CAP rate”, as of the base date. To do this, the assessor obtained property sales data, consisting of an array of 94 sales of warehouses that occurred in Saskatoon between January 1, 2012, and December 31, 2014. [ 7 ] The assessor then stratified, or grouped, the sales data. The first stratification was according to location. All groups but one (group 6) were then further divided by the size of the improvement. Certain groups were divided again by site coverage, that is the area of the property covered by the improvement.

A capitalization rate was then calculated for each grouping. This capitalization rate was used in the assessment calculations for each property, according to which group each property fell into. [ 8 ] These stratifications, and the capitalization rate for each grouping as calculated by the assessor, are illustrated in the following table: Assessor’s CAP Rate Analysis

CAP Rate Location Groups CAP Rate Group Improvement size (sq. ft.) Site Coverage (%) Cap Rate (%) Groups 1, 2, 3 and 7 – located north of 51st Street 1 < 7,000 < 8.2 2.69 2 > 8.2 5.29 3 > 7,000 < 27.0 5.45 7 > 27.0 6.59 Groups 4 and 5 – located south of 51st Street 4 < 24,000 N/A 6.85 5 > 24,000 8.63 Group 6 6 N/A N/A 3.69 [ 9 ] It is useful to understand that there is an inverse relationship between the capitalization rate and assessed value. Therefore, a lower capitalization rate results in an increase in a property’s assessed value. B.

The Board Decision [ 10 ] The owners appealed their properties’ tax assessments to the Board. They contended that the capitalization rate model was based on the division of properties in a way that had no relationship to market valuations and resulted in inappropriately low capitalization rates when their properties were compared to similar properties.

Their main complaint was with the assessor’s decision to stratify warehouse properties according to whether they were located north or south of 51st Street. 51st Street is a major arterial roadway and is largely occupied by strip malls, big box retailers and restaurants. [ 11 ] The owners’ warehouses all fell within “CAP Rate Location Groups” 3 or 7, that is, they were properties: (

a) located north of 51st Street; and (

b) were greater than 7,000 square feet – in fact, each was greater than 24,000 square feet in size. Accordingly, their property tax assessments were calculated using a capitalization rate of 5.45 percent (for those in Group 3) or 6.59 percent (for those in Group 7).

If the same warehouses had been located south of 51st Street, their assessments would have been calculated based on a capitalization rate of 8.63 percent (i.e., the capitalization rate for Group 5) and, therefore, attracted a lower assessed value. [ 12 ] Before the Board, the owners set out to show that the market did not value warehouses located south of 51st Street differently than those located north of that street.

The owners’ contention was that “similar properties, serving a similar market in a similar geographic location were being assessed differently because they had been placed in different cap rate groups” ( Board Decision at para 13). In an attempt to prove this point, they called Eugene Hritzuk to testify. [ 13 ] Over the objections of the City, Mr. Hritzuk was qualified by the Board as “an expert in the real estate market for the sales and leasing of warehouses in the City of Saskatoon”.

This qualification was “granted by the Panel with the understanding that this was not to be confused with expertise in mass appraisal” (at para 8). As summarized by the Board, Mr. Hritzuk testified that, in his experience, “the market for warehouses over 25,000 [square feet] was consistent in North Saskatoon and that the market did not act differently north or south of 51st Street. This had not changed since 2015”. He also testified that “51st Street was its own market, but properties south of 51st and then north to 71st Street were similar in value” (at para 4). Evidence supporting Mr.

Hritzuk’s testimony was provided by the owners’ tax agents. The City’s assessor, Laurie Pilke, also testified, explaining the bases for the decisions that underlay the assessment model and the specific assessments of the subject properties. [ 14 ] Ultimately, the Board was not persuaded that the assessment model was in error. It accepted a recommendation by the assessor to remove one non-arm’s-length sale from the sales array (referred to as the “ Millar Avenue sale”) , with the result that “all properties receiving the current cap rate of 5.45% are to now receive a revised cap rate of 5.5%” (at para 39).

Subject to this adjustment, the Board confirmed the original assessments and dismissed the owners’ appeal. C. The Committee Decision [ 15 ] The owners appealed to the Committee on various grounds, which the Committee distilled into five questions. Only the first of these questions is relevant to the appeal to this Court. It is as follows: “Did the Board make a mistake in upholding the Cap Rate model applied to assess the subject properties?” (at para 6(a)). [ 16 ] Prior to entering its analysis of this issue, the Committee addressed three “preliminary matters”.

First, it stated that it would “review the Board’s findings of fact, and of mixed fact and law on a reasonableness standard” (at para 12). Second, it did “not find mistake in the Board’s action to accept Mr. Hritzuk as an expert with limited qualifications” (at para 21). Third, it refused to admit evidence that had not been before the Board, holding that the “bar established in [ the Cities Act ] and through the courts is sufficiently high that we shall not consider the evidence” (at para 28).

The Committee then turned to the several arguments raised by the owners in support of their contention that the Board erred when it upheld the capitalization rate model. [ 17 ] The Committee noted that the owners’ “grounds of appeal and argument to the Committee alleged a mistake in the Board’s characterization and processing of Mr. Hritzuk’s testimony” (at para 36). The Committee took the statement in paragraph 31 of the Board Decision , namely, that the Board had accepted “Mr.

Hritzuk’s observations as accurate while at the same time accepting the data used by the Assessor and the result of his analysis”, as amounting to “a finding of fact that aligns with the Board’s qualification of Mr. Hritzuk’s testimony” (at para 38). [ 18 ] The Committee then turned to the owners’ arguments that “the Board employed a mistaken view of equity, and that in upholding the assessed values derived by application of the City’s Cap Rate model, failed to ensure the subject properties’ assessments met the [market valuation standard]” (at para 41).

It observed that “[t]here was no challenge to the notion the properties’ data used to create the City’s model were warehouses nor that the properties under appeal were properly labeled as warehouses” (at para 43). The Committee found that it did “not see the evidence before the Board as proof that property values are influenced more significantly by size

over location” (at para 45).

It concluded it was not a mistake for the assessor or the Board to have upheld the model “[b]ecause one factor was considered ahead of the other in the Cap Rate model” (at para 46). [ 19 ] Finally, the Committee rejected an argument relating to a transaction found in the array of sales used in the assessor’s calculation (referred to as the “Tubby Crescent Sale”) and the particular remedy proposed by the owners’ tax agent to remedy the inequity it argued was created via the assessment model. [ 20 ] In the result, the Committee concluded that “ the Board made no mistake in upholding the City’s Warehouse Cap Rate model as it applies to the subject properties” and it dismissed the owners’ appeal (at para 51).

III. Issues [ 21 ] The owners have been granted leave to appeal on three questions of law: (

a) Did the Committee err at law when it concluded that the Board’s treatment of Mr. Hritzuk’s expert evidence was reasonable without conducting an analysis of the substance of that evidence, including the time frames it applied to and whether it was logically possible for the Board to “accept” that evidence? (

b) Did the Committee err at law when it: (

i) failed to consider whether the assessment model lacks fundamental comparability as a matter of law; and (ii) misconstrued the appellants’ position as one based on erroneous classification of data rather than the assessment model’s fundamental lack of comparability presenting a threshold legal issue? (

c) Did the Committee err at law when it failed to recognize, as did the Board, that: (

i) the appellants cannot, as a matter of law, be required to demonstrate to the Board what could happen to properties not under appeal in order to succeed in an appeal; and (ii) notwithstanding (i), the appellants did put evidence before the Board demonstrating the consequences of modifying the assessment model in the manner proposed? IV. Analysis A. Question 1: Did the Committee err at law when it concluded that the Board’s treatment of Mr.

Hritzuk’s expert evidence was reasonable without conducting an analysis of the substance of that evidence, including the time frames it applied to and whether it was logically possible for the Board to “accept” that evidence ? [ 22 ] The owners’ argument under this ground relates to how the Committee went about reviewing the Board’s consideration of Mr. Hritzuk’s testimony. Distilled to its basics, the owners’ submission is that the Board misunderstood the substance of Mr. Hritzuk’s testimony. Specifically, they contend that the Board understood Mr.

Hritzuk to be giving evidence relating to market conditions that existed after the base date (i.e., January 1, 2015). They say that, when properly understood, his testimony was that the market did not differentiate, either before or after that date, in the valuation of warehouses according to whether they were located north or south of 51st Street. The owners further argue that the Committee erred in its appellate role when it failed to identify this error on the part of the Board. [ 23 ] The error of law alleged by the owners is akin to that which may be alleged on an appeal from a judicial review.

In that context, the reviewing court must correctly identify the applicable standard of review and correctly apply the applicable standard. [ 24 ] In this case, the owners do not object to the standard of review adopted by the Committee. It applied a reasonableness standard to its review of the Board’s findings of fact and mixed fact and law, stating as follows: [12] Based on the Court of Appeal’s direction in City Centre Equities Inc. v Regina (City) , 2018 SKCA 43 (at paras [98] – [101] ) [ City Centre Equities ], we review the Board’s findings of fact, and of mixed fact and law on a reasonableness standard.

If the findings of fact are supported by the evidence or are not otherwise unreasonable, this Committee will not interfere with the Board’s factual conclusions. [ 25 ] In City Centre Equities Inc. v Regina (City) , 2018 SKCA 43 , 75 MPLR (5th) 179, Whitmore J.A. explained: [99] The Committee’s role within the assessment regime supports a deferential standard of review on questions of fact. The Committee is an appellate tribunal charged with hearing and determining appeals. Unlike the Board, it is not a tribunal of first instance. The Board receives evidence and hears witnesses.

The Committee reviews the record of the Board and only hears new evidence in narrow circumstances, not unlike the role of an appellate court. Consequently, it fulfills a traditional appellate role in that it determines appeals on the record. Its function is not to conduct trials de novo , but to review for error and if an error has been found, to correct it. [100] Both tribunals serve specialized roles that have been created by the Legislature.

It is clear that the legislative intent remains that the Committee fulfil an appellate role such that it gives deference to the Board’s findings of fact. [101] Ultimately, based on the Legislature’s intention regarding the role of the Committee, I am of the view the most appropriate standard of review to be applied by the Committee to the Board’s factual findings and to questions of mixed fact and law where there is no extricable question of law, expressed in traditional terms, is reasonableness.

I say this because a standard of palpable and overriding error, the most deferential standard of review and one that applies in the appellate context, would limit the Committee’s role beyond what the Legislature intended. While deference must be afforded to the Board’s findings of fact, the Committee must be empowered to intervene where such findings are unreasonable or unsupported by the evidence. …

[ 26 ] The City agreed with the owners that the Committee had selected the correct standard of review in relation to the Board’s findings of fact and mixed fact and law and it appeared to be common ground that correctness applied in relation to errors of law. I mention the parties’ agreement on these matters so that it is clear that this appeal did not engage with the question as to whether the standards of review to be applied by the Committee when reviewing board decisions are impacted by Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 , 441 DLR (4th) 1 [ Vavilov ].

In this regard, see Moffat v Edmonton (Police Service) , 2020 ABCA 80 . [ 27 ] Therefore, the question confronting this Court is whether the Committee erred in its application of these standards. In this regard, the parties agreed that a correctness standard of review should be applied by this Court in its review of the Committee Decision . [ 28 ] In Vavilov , the Supreme Court of Canada contrasted a reasonableness review with one conducted according to a correctness standard: [12] … Reasonableness review is methodologically distinct from correctness review .

It is informed by the need to respect the legislature’s choice to delegate decision-making authority to the administrative decision maker rather than to the reviewing court.

In order to fulfill Dunsmuir ’s [ Dunsmuir v New Brunswick , 2008 SCC 9 , [2008] 1 SCR 190 ] promise to protect “the legality, the reasonableness and the fairness of the administrative process and its outcomes”, reasonableness review must entail a sensitive and respectful, but robust, evaluation of administrative decisions : para. 28. (Emphasis added) [ 29 ] The Supreme Court also emphasized that “ the focus of reasonableness review must be on the decision actually made by the decision maker, including both the decision maker’s reasoning process and the outcome ” (at para 83, emphasis added).

For the purposes of the Committee’s appellate function, the decision maker is, of course, the Board. Therefore, an examination of the question as to whether the Committee conducted its review correctly properly begins with consideration of the Board Decision and the Board’s treatment of Mr. Hritzuk’s evidence. [ 30 ] It is important to recall that the assessments were to be prepared as of the base date of January 1, 2015, and that, to construct his model, the assessor used sales data from the three years prior to that date. The Board used this important fact to reconcile Mr.

Hritzuk’s testimony with the approach taken by the assessor, stating as follows: [30] The Panel found the Appellant’s witness, Eugene Hritzuk, to be candid and forthright and his experience current. He stated that his company, ICR, used their own cap rates for property valuation rather than the City Assessor’s.

Presumably, their cap rates were derived from more recent sales and were a better reflection of the current market as opposed to the market period (pre-2015) that the Assessor was restricted to. [ 31 ] If ICR chose to apply the same cap rates north and south of 51st Street, then that is what the current market told them to do. And, no doubt, their clients expected advice on the current market, not the market as of January 1, 2015.

This in no way reflects on the assessments calculated by the Assessor since it must be recognized that the Assessor is bound by legislation to consider only sales preceding the base date. In short, the Panel is able to accept Mr. Hritzuk’s observations as accurate while at the same time accepting the data used by the Assessor and the result of his analysis of that data. [31] This passage reveals that the Board interpreted Mr. Hritzuk’s testimony to relate to the current Saskatoon marketplace only. In this regard, the Board was able “accept Mr.

Hritzuk’s observations as accurate”, while also accepting the “data used by the Assessor and the result of his analysis of that data”, only because it concluded that Mr. Hritzuk was not testifying as to the operation of the marketplace during the relevant three-year period leading up to the base date. The question confronting the Committee was, and now this Court is, whether the Board’s

interpretation of Mr. Hritzuk’s evidence was substantively reasonable. [ 32 ] Mr. Hritzuk is a partner with Saskatoon’s largest commercial real estate company. He held himself out as having 25 years’ experience in this field and was accepted by the Board as an “expert in the real estate market for the sales and leasing of warehouses in the City of Saskatoon” ( Board Decision at para 4). After the Board qualified him as an expert, the first question asked of Mr.

Hritzuk was whether he was “involved with leasing and sales of warehouses in the Saskatoon market in 2014?” He answered: “For 24 years, man, yeah, back to 1993.” After referring Mr. Hritzuk back to his evidence given when he was being qualified as an expert, the following exchange took place: Q [One hundred and thirty-five transactions] in warehouse. Thank you. So based upon your expert market knowledge, can you give us an idea of what a typical warehouse would have sold [for] in 2014 on a per square foot basis in the, say north of 42nd, north of Circle Drive in the city of Saskatoon ?

A Generally speaking we had a rule of thumb of $150 per square foot of the footprint of the building as a basis to determining value. Thereafter we looked at a number of variables, height of -- ceiling height, size of the yard, whether there was certain features to the building, dock doors, grade doors, office build out, how much money was spent on the interior, the level of electricity, ’cause we did a whole bunch -- we look at a whole bunch of things. It would roughly [be] 150 bucks a square foot. Q Thank you.

So -- and based -- being a little more specific now I guess -- based on your experience, does the market view there to be a difference in value in the warehouses of greater than 25,000 square feet north of 51st Street in comparison to south of 51st Street? A No, not -- not at all. We -- we’re up on Millar and we perceive that whole north end as north end as far as you can see. Q And when you say north end, you’re looking at that sort of Circle Drive -- A Yeah.

Q -- and -- and north --A That’s what we regard as north end.Q -- continuing up past 51st Street into --A Yeah.Q 71st Street. Do you believe that properties north of 51st Street would bereflected by a cap rate of either 4 point -- or sorry, 5.45 percent or 6.59percent in relation to the properties south of 51st Street at 8.6?A Oh, if you’re asking me if there’s that kind of a spread or difference --Q Yes.A -- no, not at all. We would apply the similar cap rate to the propertiesthroughout from -- from 42nd Street north we apply the similar cap rate.Q And I guess maybe I’ll just follow up again with that, Mr.

Chairman, andbe specific. So in terms of the 51st Street being a divisive line, you don’tsee that [sic] there being two markets, 42nd to 51st Street and 51st Streetnorth?A Not in the realm of leasing and sales, no, we don’t.Q And that is in -- also in relation to 2014 and --A Yeah.Q -- That part of that?A Yeah. That hasn’t changed. (Emphasis added) [33] As this segment of the transcript reveals, several of answers given by Mr. Hritzuk were provided in the present tense and might,therefore, support the Board’s

interpretation of his testimony as relating to the current operation of the marketplace. However, at thebeginning of his questioning he was asked to “give us an idea of what a typical warehouse would have sold [for] in 2014 on a per squarefoot basis”. At the end, he was asked to clarify that his statement that he did not see “there being two markets, 42nd to 51st Street and 51stStreet north”, was “also in relation to 2014”, to which he stated that “[t]hat hasn’t changed”. All of this makes it clear that Mr.

Hritzuk’sevidence-in-chief related to more than just current market conditions. [34] In cross-examination, and in response to questions from the Board, Mr. Hritzuk provided answers that, at times, spoke in boththe present and past tense. However, all of this was brought back to the relevant time period in re-examination, when a final question wasasked and answer given: Q I only have on[e] final question, and that is do you see substantial changesin the market from 2014 ’til now in terms of -- in terms of the variationbetween the north and the south of 51st Street?A No.

No no no, that’s -- it’s -- as long as I’ve been in commercial real estate,you know, basically what’s been happening, for whatever reason you guyspicked 51st Street, but further -- I’d say further up Millar, further upFaithful there’s just been extension of time but nothing else. … [35] The way Mr. Hritzuk was led through his testimony lacked a lawyer’s art; I observe that the owners were not represented bylegal counsel at the hearing before the Board.

However, his testimony as a whole can only be reasonably interpreted as stating that,throughout the years of his experience, and certainly in 2014, the marketplace did not differentiate between warehouses located north andsouth of 51st Street. According to Mr.

Hritzuk’s testimony, for the period predating the base date, from which period the assessor drew thesales data to construct the assessment model, and at present, the market did not and does not assign different values to large warehousesaccording to whether those warehouses were located north or south of 51st Street. [36] Of course, it made sense for the owners to call Mr. Hritzuk to give testimony relating to the operation of the Saskatoonwarehouse market in 2014, given that the base date was January 1, 2015, and data used by the assessor was for the three year period up toDecember 31, 2014.

However, as I have explained this is not how the Board interpreted Mr. Hritzuk’s testimony. Instead, the Boardinterpreted – in my respectful view, unreasonably – Mr. Hritzuk’s testimony to relate to a different, irrelevant, period. [37] The City argues that it was up to the Board to decide what evidence to accept or reject. However, a tribunal, such as the Board,commits an error of law if it fails to consider relevant evidence or proceeds on a misunderstanding or mischaracterization as to itsmeaning. In this province, the most frequently cited authority for this proposition is P.S.S.

Professional Salon Services Inc. vSaskatchewan (Human Rights Commission), 2007 SKCA 149, [2008] 5 WWR 440 [P.S.S.], a case under The Saskatchewan Human RightsCode, SS 1979, c S-24.1, which limited appeals to questions of law. In that context, Cameron J.A. explained how a tribunal may commitlegal error in relation to its treatment of evidence: [68] It follows, that a tribunal cannot reasonably make a valid finding of fact on the basis of no evidence or irrelevant evidence. Norcan it reasonably make a valid finding of fact in disregard of relevant evidence or upon a mischaracterization of relevant evidence.

To doso is to err in principle or, in other words, to commit an error of law. (In addition to the cases referred to above, see Toneguzzo-Norvell v.Burnaby Hospital, (SCC), [1994] 1 S.C.R. 114 at p. 121; Wade & Forsyth, Administrative Law (7th ed.) (Oxford:Clarendon Press, 1994) at pp. 316-320; Jones & de Villars, Principles of Administrative Law (4th ed.) (Toronto: Thomson Carswell, 2004)at pp. 244-43 and 431-436; and Hartwig and Senger v. Wright (Commissioner of Inquiry), et al, 2007 SKCA 74 (Sask C.A)).

Nor can atribunal reasonably make a valid finding of fact based on an unfounded or irrational inference of fact. [69] The all-important point is that to make a finding of fact on any of these bases is to error in principle by offending the implicitrequirements of the statute, as well as the common law duty of procedural fairness perhaps. To suppose otherwise is to suppose thelegislature intended, in conferring power upon a human rights tribunal to determine facts in controversy much as judges do, to empowerthe tribunal to engage in unfounded, unreasonable, or arbitrary fact-finding.

The fact-finding process, or method by which facts incontroversy are to be determined in this quasi-judicial setting, does not permit of this, either in its statutory or common law conception.

(Footnotes omitted; italicized emphasis in original; underlined emphasis added) [38] In Kramer Ltd. v Sherwood (Rural Municipality No. 159), 2003 SKCA 121 at para 22, 241 Sask R 67 [Kramer], a decision thatpre-dates P.S.S., Sherstobitoff J.A. applied similar principles in the context of a property tax assessment appeal. [39] Of course, the appeal to this Court is from the decision of the Committee, not that of the Board. In this regard, the Committeecorrectly noted that the owners’ “grounds for appeal and argument to the Committee alleged a mistake in the Board’s characterization andprocessing of Mr.

Hritzuk’s testimony” (Committee Decision at para 36). Therefore, to succeed in their appeal to this Court, the ownersmust show that the Committee fell into error when it conducted its review of the Board Decision. I turn, on that footing, to theCommittee’s treatment of the Board Decision. [40] After briefly returning to the City’s objection to the Board’s acceptance of Mr. Hritzuk as an expert, the Committee dealt withthe owners’ appeal under this ground by stating as follows: [38] At paragraph [31] of its decision, the Board makes a finding that it accepts “… Mr.

Hritzuk’s observations as accurate while at thesame time accepting the data used by the Assessor and the result of his analysis ….” We see this as a finding of fact that aligns with theBoard’s qualification of Mr. Hritzuk’s testimony. His knowledge of the warehouse sales and leasing market in the City does not translateinto expertise in the mass appraisal of warehouse properties for assessment purposes, and the Board recognized that. [39] Altus alleged the Board disregarded and mischaracterized Mr. Hritzuk’s evidence and, therefore, committed errors of law. TheCity, in challenging Mr.

Hritzuk’s qualification as an expert overall, suggested much of his testimony was opinion-based. The Citypointed specifically to comments regarding the warehouse market north and south of 51st Street, use of a “rule of thumb” factor of$150/square feet as a value estimator and remarks on size as it relates to value, as professional judgement not fact. [40] We do not see the Board’s handling of Mr. Hritzuk’s testimony as being an error of law nor unreasonable as it relates to theconclusions reached. We agree with the City that Mr. Hritzuk’s remarks are an expression of professional judgement.

It is apparent to usthe Board evaluated this evidence against the City’s data groupings and analysis, and subsequently decided to accept the City’s analysisand assessed values. Pursuant to the Court of Appeal’s direction in City Centre Equities (specifically para [108]), the Board’s finding onthe testimony is reasonable and we will not interfere. [41] This analysis does not respond to the owners’ legitimate critique of the Board’s handling of Mr. Hritzuk’s testimony. Contraryto the Committee’s apparent reasoning, the statement by the Board that it accepted “Mr.

Hritzuk’s observations as accurate while at thesame time accepting the data used by the Assessor and the result of his analysis” (Board Decision at para 31 and reiterated in theCommittee Decision at para 38) was not made with reference to the scope of Mr. Hritzuk’s qualification as an expert. Similarly, there wasnever a suggestion that his expertise was intended to “translate into expertise in the mass appraisal” (Committee Decision at para 38). It issimply beside the point what Mr. Hritzuk’s evidence was not, i.e., mass appraisal evidence. The Committee should have considered whatfactual and legal questions Mr.

Hritzuk’s testimony was intended to, and did in fact, address. In this regard, as I will come to, Mr.Hritzuk’s testimony had relevance as to whether the market valuation standard and equity had been achieved. The reasoning found inparagraph 38 of the Committee Decision misses this critical point completely. [42] It is also simply beside the point that Mr. Hritzuk’s evidence was “professional judgment” (at para 39). In this Court, the Cityattempted to resurrect arguments made to the Board and the Committee that Mr. Hritzuk’s opinion should not have been received or givenweight.

However, the Board not only admitted his testimony, but at two junctures it gave reasons as to why his evidence should be givenweight. In this regard, the Board found Mr. Hritzuk to be “candid and forthright and his experience current” (at para 30). Later, it said thatit could “accept Mr. Hritzuk’s observations as accurate” (at para 31). [43] Against this background, it was not open to the Committee to interpret the Board Decision as saying that the “the Boardevaluated this evidence against the City’s data groupings and analysis” (at para 40, emphasis added). The Board had rejectedMr.

Hritzuk’s testimony because it wrongly understood it to relate to a different time period. As I have explained, the Board Decisionreflects that it felt it was left only with the City’s evidence relating to the relevant period. The Board did not therefore evaluate Mr.Hritzuk’s testimony against the City’s data at all. Recognition of the latter reality responds to the City’s argument that this Court mustpresume the Board reviewed all of the evidence and no reviewable error would exist “as long as the Board’s findings of fact do notoverlook, disregard or mischaracterize relevant evidence to its findings of fact”.

The simple fact is that the Board did misapprehendMr. Hritzuk’s testimony. The Committee incorrectly failed to identify the Board’s error of law, namely, the mischaracterization ofMr. Hritzuk’s evidence (see P.S.S. at para 69). Approaching the matter as agreed by the parties, that is, as a question of mixed fact andlaw, it can also be said that it was not reasonable for the Committee to interpret the Board Decision as it did. Respectfully, under eitherstandard of review, the Committee failed in its appellate function. [44] The City also argued that Mr.

Hritzuk’s evidence was legally irrelevant to the issues before the Board. I am not able to acceptthis argument. It was open to the owners to show error in the City’s assessment model by contrasting its operation with what occurs in theactual marketplace. Kramer and Saskatoon (City) v Walmart Canada Corp., 2018 SKCA 2 [Walmart] bear on this idea. [45] Kramer involved an appeal from the assessment of a very large building located in the rural municipality that surrounds theCity of Regina. The assessor’s model made no allowance for economic obsolesce for buildings with more than 75,000 square feet of floorspace.

The municipality’s contention was that there “had been no buildings of the size in question sold in the municipality, and thus therewas no data to indicate the existence of abnormal economic obsolesce” (at para 13). However, the City of Regina’s assessment modelaccounted for this factor based on sales in that city. The owner’s contention was that the rural municipality and the City of Reginaoperated as a single marketplace and evidence of the Regina model (and the data behind it) was therefore relevant to assessments in therural municipality.

The rural municipality’s assessor “took the position that it ‘has a discretion to exercise in determining whether or not toconsider the assessed values of buildings located in the City of Regina’, relying upon the judgment of this Court in Northern Sales Co. v.Saskatoon (City) (1993), (SK CA), 109 Sask. R. 289” (at para 21). The board of revision and the Committee bothagreed with the rural municipality.

Justice Sherstobitoff found legal error to have been committed in the failure to consider this evidence: [22] The judgment in Northern Sales did not contemplate circumstances such as exist in this case, where the appellant led

uncontradicted evidence, which, if accepted, would have established that the two municipalities in question constituted a single market, or a least a very similar market, something certainly relevant to the existence or non-existence of abnormal economic obsolescence in the valuation of buildings for tax purposes. In such circumstances the assessor was under an obligation to at least consider the evidence. While there may have been reasons to give the evidence little or no weight, the assessor was required to at least consider the evidence and to be prepared to give reasons for treating it as it did.

There was no discretion to refuse to consider the evidence. And even if it had a such a discretion, we cannot see how, acting judicially, it could refuse to at least consider the evidence.

Failure to do so would constitute failure to take into account relevant evidence, something which constitutes an error of law. [ 46 ] This determination drove Sherstobitoff J.A.’s answer to the questions of law on which leave to appeal had been granted, leading to the overall conclusion that the Committee had “failed to determine whether or not a factor for abnormal economic obsolescence should apply to the valuation of the building in question, and if so, the amount of it” (at para 33). [ 47 ] In Walmart , taxpayers objected to a rent model for valuing properties based on size thresholds which, the taxpayers said, “did not reflect market behaviour and resulted in unfair assessments because of the size disparity between the properties in the Rent Model and the Properties” (at para 10).

To make their point, the taxpayers provided evidence of market rents. This Court rejected the City’s argument that this evidence was not relevant in a mass appraisal context. Instead, the Court agreed that this evidence was properly tendered and should have been considered by the Board. Justice Whitmore explained why this evidence should have been considered, stating as follows: [84] However, for the reasons that follow, the definition of equity within the legislation is broad enough to allow the respondent taxpayers to adduce such evidence specifically in that context.

While individual appraisals and actual market value of the property have no place in the process of mass appraisal (see paragraph 34 of [ Cadillac Fairview Corporation Limited v Saskatoon (City) , 2000 SKCA 84 , [2000] 11 WWR 89]), they may be considered along with the totality of the evidence to determine whether a model has assessed a property equitably. [85] For non-regulated property assessments, equity is achieved “by applying the market valuation standard so that the assessments bear a fair and just proportion to the market value of similar properties as of the applicable base date ” (emphasis added, The Cities Act , s. 165(5) ).

Market valuation standard, market value, and base date are then defined at s. 163. Notably, base date is defined as “the date established by the agency for determining the value of property for the purpose of establishing assessment rolls of the year in which the valuation is to be effective and for each subsequent year preceding the year in which the next revaluation is to be effective” (s. 163(d)).

Market value is then defined as “the amount that a property should be expected to realize if the estate in fee simple in the property is sold in a competitive and open market by a willing seller to a willing buyer, each acting prudently and knowledgeably, and assuming that the amount is not affected by undue stimuli” (s. 163(f.2)). [86] While the Legislature has reinforced the primacy of the mass appraisal process (see paragraph 10 of [ Imperial Oil Limited v Regina (City) , 2016 SKCA 107 , 408 DLR (4th) 46 [ Imperial Oil 2016 ]], whether equity has been achieved may require consideration of broader factors.

Equity in non-regulated property assessment is a matter of result, not process (paragraph 9 of Imperial Oil 2016 ). Whether equity was achieved must be demonstrated on the evidence. For example, evidence can be adduced as to whether the properties are similar (see Harvard Property Management Inc. v Saskatoon (City) , 2017 SKCA 34 at para 22 [Harvard]), or as to the market value of these similar properties.

I also note there is nothing in The Cities Act that specifically prohibits a taxpayer from adducing such evidence. (Emphasis in original) [ 48 ] In this case, in my respectful view, the Board missed the relevance of Mr. Hritzuk’s evidence because it misunderstood or mischaracterized his testimony. The Committee, in turn, failed to recognize the Board’s error. [ 49 ] In various ways, the City contends that Mr. Hritzuk should not have been qualified to give expert testimony. It also argues that the Board’s oral ruling at the hearing, where Mr.

Hritzuk was qualified to give expert testimony, differed from what was later said in the Board Decision . Leave has not been granted to raise these issues in this Court. Therefore, I decline to even consider these points. [ 50 ] The final argument advanced by the City under this ground of appeal is that this Court’s decision in GFL Environmental Inc. v Edenwold (Rural Municipality) , 2020 SKCA 89 [ GFL ], “renders the evidence of Mr. Hritzuk irrelevant as no grounds of appeal or material supporting facts allege the specific error to which Mr. Hritzuk testified” (emphasis in original).

In GFL , this Court held that the Committee had “erred in law by failing to recognize that the Board’s jurisdiction extended only to addressing and correcting for the errors that were raised in [the taxpayer’s] notice of appeal to the Board and by failing to recognize that the Board did not respect this limitation on its jurisdiction” (at para 99). [ 51 ] There are three problems with the City’s reliance on GFL . First, the board of revision in GFL made an error that the Board did not make in this case.

In GFL , the board of revision erred by correcting for mistakes that were not identified in any notice of appeal before it. Nothing of the kind occurred in this case. Here, while the notice of appeal to the Board was general in nature, the Board required the owners to file a perfection notice.

Thereafter, the record reflects that all parties understood the owners were advancing the argument that the assessment model did not reflect the reality that the market did not discriminate between warehouses located north and south of 51st Street. [ 52 ] Second, and flowing from the first point, the Committee committed an error in GFL that did not occur here. In this regard, in GFL , the question as to whether the board of revision had exceeded its jurisdiction was directly put into issue before the Committee. Nothing similar occurred here.

In this case, the Committee was not asked to rule on whether the Board had exceeded its jurisdiction by going beyond the notice of appeal to the Board. [ 53 ] Third, the issue of whether the Committee erred in the way now suggested is not raised in any question of law for which leave to appeal to this Court has been granted pursuant to s. 33.1 of The Municipal Board Act , SS 1988-89, c M-23.2 . Simply put, the issue is not before us. [ 54 ] In this case, the Committee failed to recognize that the Board misapprehended Mr. Hritzuk’s evidence. The Committee also

failed to properly understand that the reasons the Board gave for refusing to attach weight to the evidence of Mr. Hritzuk did not align with the substance of his testimony. For these reasons, the Committee itself failed to conduct a proper reasonableness review. B. Question 2: Did the Committee err at law when it: (

i) failed to consider whether the assessment model lacks fundamental comparability as a matter of law; and (ii) misconstrued the appellants’ position as one based on erroneous classification of data rather than the assessment model’s fundamental lack of comparability presenting a threshold legal issue? [ 55 ] It assists in understanding this issue to begin with several basic principles of municipal taxation, as follows: (

a) tax assessments in this province are made using only mass appraisal (the Cities Act , s. 165(1) ); (

b) mass appraisal “means the process of preparing assessments for a group of properties as of the base date using standard appraisal methods, employing common data and allowing for statistical testing” (s. 163(f.3)); and (

c) the “dominant and controlling factor in the assessment of property is equity” (s. 165(3)). The system of mass appraisal therefore depends on the classification of properties into groups with similar value-driven characteristics . This seemingly straight-forward proposition was made by Cameron J.A. in Sasco Developments Ltd. v Moose Jaw (City) , 2012 SKCA 24 , 385 Sask R 287: [12] Mass appraisal is defined in

section 163 to mean the process of preparing assessments for a group of properties using standard appraisal methods, employing common data and allowing for statistical testing. Read in context, the term “a group of properties” may be taken on application to mean a group of “similar” properties. And the term “common data” may be taken to mean pieces of information in the form of facts and statistics pertaining to market value and common to a group of similar properties. [13] Hence, mass appraisal of hotel properties, using the income method adapted to this end, entails gathering such pieces of information for the threefold purpose of (

i) classifying and grouping hotel properties by similarity, a process known as stratification; (ii) establishing the common data base requisite to the determination of the annual net operating income that a hotel property in a group of similar properties can typically be expected to generate in the market place; and (iii) selecting an appropriate capitalization rate. [ 56 ] Justice Ryan-Froslie further explained this idea in 994552 N.W.T. Ltd. v Kindersley (Town) , 2019 SKCA 77 : [41] Assessors must gather and analyze the data necessary to determine value. Page 16 of

chapter 2 [of the Market Value Assessment in Saskatchewan Handbook , ver 3 (Regina: Saskatchewan Assessment Management Agency, 2012), titled], Valuation Parameters, discusses the sorting and classification of property and states that “[p]erhaps the most difficult part of the valuation parameter development process is to divide properties into groups that have similar traits and value characteristics. However, this step is the key to a successful market value based assessment analysis”. [42] The objectives of classification (also referred to as stratification) are set out in

chapter 2 at page 174: • To enable the valuation of a number of properties easily and efficiently. • To stratify the properties into specific classes so that comparisons are meaningful. • To have a broad enough definition of classes so that there are sufficient numbers within the group to establish valuation parameters and values. [43] Page 18 of the

chapter on Valuation Parameters identifies classification or stratification of properties into groups with similar physical characteristics and similar value-driven characteristics as “the most important step in the mass appraisal valuation process”. … (Footnotes omitted) [ 57 ] The owners invoke these principles when they contend that, contrary to the City’s assessment model, location – and, in particular, location north or south of 51st Street – was not a characteristic that affected value. They also contend that, although size did influence value, it was not properly accounted for in the model.

As a result, they maintain the assessment model was not built upon the classification of properties into groups with similar value-driven characteristics. [ 58 ] The Committee engaged with the owners’ arguments in the following passage from the Committee Decision : [43] While Altus may suggest the Board’s decision challenges the tenets of mass appraisal, the evidence and explanations tendered by the City support the Warehouse Cap Rate model aligns with mass appraisal requirements in the Act .

There was no challenge to the notion the properties’ data used to create the City’s model were warehouses nor that the properties under appeal were properly labeled as warehouses. [44] The crux of Altus’s challenge is the Cap Rate model, in stratifying for location prior to size, and in being modeled from a majority of properties smaller in size than the subject properties, fails to achieve equity.

Particularly, Altus challenged that the assessments are not a reasonable estimate of market value for the properties and do not reflect typical market conditions for similar properties. [45] We do not support this challenge of the Board’s decision either. Although overall the size of the subject properties ranges from just over 20,000 to over 200,000 square feet, we do not see the evidence before the Board as proof that property values are influenced more significantly by size over location.

There is no doubt that size and location both have influence on the market value of properties as defined in the [ Cities ] Act . Both the City’s Warehouse Cap Rate model and Warehouse Rent Rate model recognize those influences. [46] Because one factor was considered ahead of the other in the Cap Rate model is not a mistake of the assessor and the Board came to a conclusion to uphold the model in its decision. In relative terms, the City’s warehouse market is small – it is unreasonable to believe the

sampling of 90-plus sales over a three- or four-year period would result in a model that creates exact results for every individual market scenario. Rather, the legislation calls for assessments to be an estimate of market value, reflective of typical conditions for similar properties [emphasize [ sic ] added]. The Board’s conclusion to uphold the City’s Warehouse Cap Rate model was reasonable and a decision open to it based on the evidence. (Emphasis in original) [ 59 ] With respect, the Committee’s analysis misses the point of the owners’ argument.

The proposition that there was “no challenge to the notion the properties’ data used to create the City’s model were warehouses nor that the properties under appeal were properly labeled as warehouses” (at para 43) is accurate, but completely irrelevant to the question as to whether location was a characteristic that affected value or was properly accounted for in the assessment model. [ 60 ] The Committee’s contention that it did “not see the evidence before the Board as proof that property values are influenced more significantly by size over location” (at para 45) also misses the mark.

The Committee’s reasoning tends to suggest that the owners were obligated to prove that size was a larger influence on value than location in the assessor’s model. However, the substance of Mr. Hritzuk’s evidence, which neither the Board nor the Committee grappled with, was that value was not affected by location at all , at least in the manner theorized by the assessor’s model. [ 61 ] The owners take no issue with the Committee’s observation that “the City’s warehouse market is small” (at para 46). However, they point out, and I agree, that “it fails to reconcile this idea with Mr.

Hritzuk’s evidence that purchasers and lessees have not placed any importance on where a property is located relative to 51st Street”. The Committee’s observation as to the small size of the City marketplace should have led it to inquire whether the imposition of a stratification based on whether property was located north or south of 51st Street had the effect of exacerbating problems that arise from working with small data sets. [ 62 ] Contrary to the City’s submissions, the owners are not urging the use of a “single property appraisal technique”.

Instead, the owners simply contend that the assessor, and then the Board and Committee, misapplied principles of mass appraisal by relying on a factor that bore no relationship to market value (location) and inadequately accounted for one that did (size). [ 63 ] Likewise, the City misunderstands the owners’ argument when it suggests in its factum that the owners “are alleging that size is the only factor relevant to comparability” (emphasis in original).

This misses the point the owners are making – which is that, within the data set relevant to these assessments, location is irrelevant , not that size is the only factor relevant to comparability. [ 64 ] The City’s argument that somehow Mr. Hritzuk’s evidence should be disregarded because it is an opinion and not related to specific sales is contrary to Kramer and Walmart. Also, if given effect, it would undermine the idea that it is not incumbent on a ratepayer to present an alternative, statistically tested assessment model.

Instead, it is enough for it to demonstrate that the model itself is in error ( Estevan Coal Corp. v Estevan (Rural Municipality No. 5) , 2000 SKCA 82 at paras 47 –​48, [2000] 8 WWR 474 and Walmart at para 88 ). [ 65 ] For these reasons, in my respectful view, the Committee misconstrued the owners’ arguments and, as a result, it failed to grapple with whether, on the evidence, the model was based on a value-driving characteristic when it differentiated warehouses on the basis of being located north or south of 51st Street, and whether the assessors’ size stratifications were value-based, as demanded by the Cities Act .

C. Question 3: Did the Committee err at law when it failed to recognize, as did the Board, that: (

i) the appellants cannot, as a matter of law, be required to demonstrate to the Board what could happen to properties not under appeal in order to succeed in an appeal; and (ii) notwithstanding (i), the appellants did put evidence before the Board demonstrating the consequences of modifying the assessment model in the manner proposed? [ 66 ] As already discussed, the owners’ position before the Board was that the capitalization rate model resulted in inequitable assessments. Before the Board, their agent suggested, as a remedy, a specific way to regroup the sales data.

The agent’s evidence was summarized in the following passage from the Board Decision : [34] In the Appellant’s written submission (Exhibit A.3) was the assertion that the neighborhoods north of 51st Street “... are now subject to valuations based upon the sales of properties with less than 24,000 square feet. To remedy the inequity, we request the Market Area 5 to include the “AO” neighborhoods of 30006, 30017, 30021 and 30026. As discussed previously, the neighborhood of 30017 had a sale of a property greater 24,000 (sic) square feet indicating calculated (sic) CAP of 8.12%.

The addition of this sale has a minimal impact to the median applied CAP rate (Appendix

V) reducing to from (sic) 8.63% to 8.60%. ” (Exhibit A.3, p.15) [35] In cross-examination, when asked how many identified sales would be involved if this remedy were implemented, the Agent responded that only the 118 Tubby Crescent sale would move into the new stratification. He then acknowledged such, saying the new cap rate would then be applied to warehouses greater than 24,000 (sf).

The broader impact clearly was not a concern considering his accompanying comment that “... anything below this (24,000) would be left to the assessor to deal with. ” [36] The Panel would not contemplate recommending a change in stratification without knowing the impact on all properties, not just one or a few. (Emphasis in original)

[ 67 ] The owners suggest that the Board’s analysis evinces a further misunderstanding of the evidence before it. Specifically, based on paragraph 36 of the Board Decision , they say that “the Board seems to have believed the proposed remedy was to alter the structure of the entire Model”. They say, also, that they did not suggest, nor could the Board ever order, a remedy that applied to “more properties than those under appeal”.

They also point out, as indicated in the preceding discussion in this judgment, that it is not incumbent on a ratepayer to present an alternative, statistically tested, assessment model. [ 68 ] The owners then contend that the Committee “failed to understand the substance of this issue” and instead proceeded as if the Board reasonably rejected a different argument than the one presented to it.

They say that the Committee’s misunderstanding is demonstrated in the following passage from the Committee Decision : [47] Altus suggested that once the non-arm’s length Millar Avenue sale was removed from the analysis, the remaining Cap Rate sale representative of larger properties was the sale of 118 Tubby Crescent. According to Altus, that sale ought to be moved from Group 7 (where it was the lone sale of a “larger warehouse”) to Group 5 (where the sale properties were also “generally larger”).

That move resulted in a slightly lower Cap Rate for Group 5 (8.60% versus the original 8.63%), which should be applied to all appealed properties as the subjects were all larger warehouses. [48] The Board suggested at paragraph [36] of its decision that it would not entertain such change without fully knowing the impact on all warehouse properties, not just one or a few of them.

Altus again suggested the Board made an error in law and again we disagree. [49] What Altus is proposing, whether it be deemed remedy or not, is an alternative configuration of the Cap Rate model based loosely on warehouse size first, yet with groupings still based on location. The result benefits the appealed properties overall in terms of reduced assessed values but in essence Altus is suggesting the Board abandon the Assessor’s groupings based on consideration of location first.

We do not fault the Board for rejecting an alternative suggestion put forth without the backing of comprehensive evidence the Assessor’s model did not produce reasonable results reflective of the [market valuation standard]. Therefore, we dismiss this challenge of the Board’s decision. [ 69 ] The City maintains that the owners themselves misunderstand the Board Decision and the Committee’s treatment of it. The City says, in this regard, that the Board was simply addressing how the agent’s proposed remedy fit with a re-stratification of the sales data itself.

It finds support for this conclusion in paragraph 35, wherein the Board recounted the question asked of the agent in cross- examination as to “how many identified sales would be involved if this remedy were implemented”. [ 70 ] I tend to agree with the City’s

interpretation of both the Board Decision and the Committee Decision . However, whether the Board and the Committee erred in the manner argued by the owners is a moot issue, considering the other errors I have identified. The City did not disagree with several of the important legal propositions that underpin the owners’ argument in connection with this third ground of appeal. Specifically, the City agreed “that a taxpayer is not required to provide, as a remedy, a statistically tested model which demonstrates how every property in the warehouse inventory is affected”.

The City also agreed that the owners’ appeal could not alter the assessments of any other properties. Therefore, when the matter returns to the Committee, as I conclude it must, I am confident that the Committee will correctly apply these basic principles. V. Conclusion and Remedy [ 71 ] For the reasons given, I conclude that the Committee erred in law in two ways. First, the Committee mistakenly concluded that the Board’s treatment of Mr. Hritzuk’s expert evidence was reasonable.

Second, the Committee failed to adequately grapple with whether, on the evidence, the capitalization rate model was based on value-driving characteristics as demanded by the Cities Act . These errors compel that the Committee Decision be set aside. [ 72 ] The owners contend that this Court should also quash the existing assessments and direct the assessor to recalculate the assessment for each warehouse property based on a capitalization rate of 8.60 percent. This capitalization rate is derived by regrouping the sales array in a fashion said to be “consistent with” the expert evidence of Mr. Hritzuk.

The City submits that if the appeal is successful, the appropriate remedy is to remit the matter to the Committee to reconsider the matter in light of the findings of this Court and the law. I agree with the City on this point. [ 73 ] Underlying the owners’ proposed remedy is the proposition that if the Board had not erred, or if the Committee had recognized and corrected for that error, one or the other would have inevitably been compelled to order that the properties would be assessed on the basis of a calculation using a 8.60 percent capitalization rate.

However, I am not convinced that this is an inevitable outcome. [ 74 ] The owners were entitled to have Mr. Hritzuk’s evidence properly understood and considered by the Board. The owners were also entitled to have the Committee properly grapple with whether, on the evidence, the model was based on value-driving characteristics as demanded by the Cities Act . These are different propositions than a conclusion that Mr. Hritzuk’s evidence was determinative of the issue as to whether the capitalization rate model was in error or what should be done to correct for it. [ 75 ] In addition to Mr.

Hritzuk’s testimony, the Board had before it the raw data that went into the creation of the original capitalization rate model. This data was not reconsidered by the Board because it mistakenly thought there was no conflict between the conclusions the assessor drew from the data and Mr. Hritzuk’s evidence. The Committee also did not properly grapple with this evidence.

I find the situation here to be analogous to Walmart , wherein Whitmore J.A. explained: [89] This is not to say that an appellant will succeed by simply submitting evidence that its property value is less than what the assessment model provides, as mass appraisal will always provide assessments that will vary from actual value. However, any such evidence may become part of the evidentiary basis to support a finding that equity has not been achieved by the property assessment.

In short, while the Board, the Committee, and this Court are restricted from varying a non-regulated property assessment using a single property appraisal technique under The Cities Act , evidence (such as the rental rates submitted by the respondent taxpayers) may be considered along with the totality of the evidence to determine whether a model has assessed a group of similar properties equitably , so long as this evidence is relevant to the applicable base date. The Committee made no error here.

(Emphasis added) [ 76 ] In the context of this case, it is properly left to the Committee to correct for the errors I have identified. I would, accordingly, set aside the Committee Decision and remit the matter to the Committee for reconsideration in accordance with this judgment and the law. [ 77 ] The owners have achieved substantial success in this appeal. They should be entitled to one set of costs, to be taxed under Column 3. “Leurer J.A.” Leurer J.A. I concur. “Ottenbreit J.A.” Ottenbreit J.A. I concur. “Barrington-Foote J.A.” Barrington-Foote J.A.