Freeborne Developments Ltd. Appellant v. Corman Park (Rural Municipality), 2021 SKCA 48

Court of Appeal for Saskatchewan Docket: CACV3469 Citation: Freeborne Developments Ltd. v Corman Park (Rural Municipality) , 2021 SKCA 48 Date: 2021-03-30 Between: Freeborne Developments Ltd. Appellant And Corman Park (Rural Municipality) Respondent Before: Jackson, Tholl and Kalmakoff JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Kalmakoff In concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice Tholl On appeal from: 2019 SKMB 71 , Saskatoon Appeal heard: January 21, 2021 Counsel: Candice D. Grant for the Appellant Christopher C.

Boychuk, Q.C., for the Respondent Kalmakoff J.A. I. INTRODUCTION [ 1 ] This judgment concerns an appeal from a decision of the Assessment Appeals Committee of the Saskatchewan Municipal Board [Committee] , relating to the tax assessment of three properties [the Land] owned by Freeborne Developments Ltd. [Freeborne] in the Rural Municipality of Corman Park [the R.M.] . [ 2 ] An assessor had determined that the Land should be classified as “Commercial and Industrial” for the purpose of property tax assessment. Freeborne appealed the assessor’s determination on classification to a Board of Revision [Board].

The Board allowed Freeborne’s appeal and determined that the Land was properly classified as “Other Agricultural” for tax assessment purposes ( Freeborne Developments Ltd. v Corman Park No. 344 (Rural Municipality) , 2018 SKMBR 3440022 [ Board Decision ]). The R.M. then appealed the Board Decision to the Committee. The Committee allowed the appeal. It held that the Board had misinterpreted the governing provisions of The Municipalities Regulations , RRS c M-36.1 Reg 1 [ Regulations ], and determined that the Land was properly classified as “Commercial and Industrial”.

As a result, it overturned the Board Decision and reinstated the assessor’s original classification ( Corman Park (Rural Municipality) v Freeborne Developments Ltd. , 2019 SKMB 71 [ Committee Decision ] ) . [ 3 ] Freeborne appeals to this Court from the Committee Decision. For the reasons that follow, I would dismiss the appeal. II. BACKGROUND A. The Land [ 4 ] The Land is comprised of three contiguous properties totalling approximately 367 acres in size. In 2007, Freeborne bought the Land which, at the time, was agricultural land. Freeborne initially intended to develop the Land as an industrial park.

To that end, in 2011, Freeborne applied to the R.M. to have the Land rezoned from “Agricultural” to “Rural Industrial Park (M2)”. The application was successful; the R.M. amended the Corman Park No. 9-94 Zoning Bylaw by passing Corman Park No. 10-11 Zoning Bylaw (18 January 2012) [ Zoning Bylaw ], to make this change. [ 5 ] In spite of all that, the development of an industrial park never materialized in the way Freeborne had intended.

Freeborne continued to use the Land as agricultural land, with approximately 60% of its acreage being cultivated and seeded to crop and the remainder used as pasture, even though agricultural use was non-compliant with the Zoning Bylaw after January of 2012. [ 6 ] In 2017, the Land was again rezoned, this time to “Light Industrial District (M1)”. Freeborne tried to sell the Land, advertising it as Commercial property, with an asking price of $6,700,000.

It received no offers. [ 7 ] Notwithstanding the 2012 zoning change to Rural Industrial Park (M2), the R.M. continued to assess the Land, for tax purposes, under the “Agricultural” classification for the years 2012, 2013 and 2014. In 2015, the R.M. re-assessed the Land, changing its tax classification to “Commercial and Industrial”, and taxed the Land on that basis for 2015, 2016, 2017 and 2018. This change in classification resulted in a significant increase in Freeborne’s tax obligation, from $935.76 in 2014, to $24,624.64 in 2017. B. The Board Decision [ 8 ] Freeborne appealed the 2018 assessment to the Board.

The Board allowed Freeborne’s appeal, ruling that the Land was properly classified as “Agricultural” for the purpose of tax assessment. In that respect, the Board reasoned as follows:

[12] The Board concurs with SAMA that the land is correctly valued using the market value standard as opposed to valuing it as agricultural with the regulated manual. There is no question the land is zoned industrial at the request of the owner and accordingly it should be valued by the market value standard. In this respect the appellant did not provide any evidence of error in the use of the market value standard when valuing industrially zoned land. [13] With regard to the classification the Board looks at The Municipalities Regulations of the Act which reads as follows: Classes of Property 39 The following classes of property are established pursuant to clause 196(1) (

a) of the Act : (

b) Other Agricultural Land and Improvements, which include only land and improvements, other than occupied dwellings: (

i) for which the predominant use is cultivation , determined as the best use that could reasonably be made of the majority of the surface area; [14] The Board realizes that the property may, in the future, have a higher and better use but at the present time there is no question that the predominant use is cultivation, hence the proper classification is “Other Agricultural”. (Emphasis added) [ 9 ] As will be discussed in more detail as these reasons unfold, the portion of Regulations reproduced in paragraph 13 of the Board Decision was not an accurate reproduction. The portion of subparagraph (

i) of subsection (

b) emphasized above should read “for which the predominant potential use is cultivation…”. The Board omitted the word “potential”. C. The Committee Decision [ 10 ] The R.M. appealed the Board Decision to the Committee. The Committee framed the question for determination as being whether the Board had made a mistake by changing the property classification of the Land from “Commercial and Industrial” to “Other Agricultural” ( Committee Decision at para 8). [ 11 ] In the end, the Committee concluded that the Board had erred by (

i) misquoting and, thus, misinterpreting s. 39 (

b) of the Regulations ; and (ii) failing to consider s. 39 (f)(i) . In that respect, the Committee said: [18] The Board… found subsection 39 (

b) of the Regulations applied. Subsection 39 (

b) states: 39 The following classes of property are established pursuant to clause 196(1) (

a) of the Act : (

b) Other Agricultural Land and Improvements, which includes only land and improvements, other than occupied dwellings: (

i) for which the predominant potential use is cultivation, determined as the best use that could reasonably be made of the majority of the surface area; … [19] The Board concluded that: the property may, in the future, have a higher and better use but at the present time there is no question that the predominant use is cultivation, hence the proper classification is “Other Agricultural”. [20] The Board misquoted the Regulations . It left out the word “potential”. Subsection 39 (b)(

i) reads: for which the predominant potential use is cultivation, determined as the best use that could reasonably be made of the majority of the surface area. [21] The RM argued this property best fits within subsection 39 (

f) of the Regulations . That

section states: (

f) Commercial and Industrial, which includes only land and improvements: (

i) used or intended to be used for business purposes, including land and improvements for office, wholesale, retail, service, hotel, motel, industrial and manufacturing activities; … [22] The Board made no mention of this

section in its decision, despite a citation of a Board Case (of the same Board) involving the same issues and section. [23] Based on the evidence before the Board, it is fundamentally clear the land was acquired to be used for industrial purposes. It is clear that Freeborne worked with the RM on rezoning. The sales documentation referred to indicated this is a commercial real estate play.

Freeborne confirmed in argument the acquisition of the property was done on the basis of a commercial industrial real estate play. [24] It is our view the Board fell into error when it misquoted the Regulations regarding predominant potential use and compounded that mistake by failing to have regard to the demonstrated intended use by Freeborne. Both sections of the Regulations speak to a future state of the property, be it a predominant potential use or intended use.

The Board concentrated on the “present” use in allowing the appeal and failed to have regard to the extensive factual matrix concerning acquisition, rezoning and potential sale of the property. On the record before us, we find the Board’s decision was unreasonable based on the evidence and the legislation. (Emphasis in original)

[12] As a result of reaching this conclusion, the Committee allowed the R.M.’s appeal and reinstated the original classification ofCommercial and Industrial that had been determined by the assessor. III. THE GROUND OF APPEAL [13] The Court’s jurisdiction to hear this appeal is found in s. 33.1 of The Municipal Board Act, SS 1988-89, c M-23.2 [MBA]. Theright to appeal is limited to questions of law or jurisdiction and is subject to leave being granted by a judge of this Court. Freeborne wasgranted leave to appeal from the Committee Decision on the following question of law: Did the Assessment Appeals Committee err in law in its

interpretation and application of

section 196 of The Municipalities Act and section39 of The Municipalities Regulations in determining that the properties which are the subject of this appeal fall within the “Commercialand Industrial” classification for the purposes of the 2018 assessment? [14] Freeborne argues that, even though the Committee was correct to find that the Board had misquoted s. 39(b)(

i) of theRegulations, it failed to give meaningful consideration to whether, despite that error, the Land could still properly be classified asAgricultural for taxation purposes, given the manner in which Freeborne had always used it. IV. ANALYSIS [15] As s. 33.1 of the MBA limits appeals from a decision of the Committee to questions of law or jurisdiction, the applicablestandard of review of the Committee’s decision is correctness (Gary L.

Redhead Holdings Ltd. v Swift Current (Rural Municipality), 2017SKCA 47 at para 88, 415 DLR (4th) 218; Consumer Co-operative Refineries Limited v Regina (City), 2020 SKCA 111 at para 40 [Co-opRefineries]; City Centre Equities Inc. v Regina (City), 2018 SKCA 43 at paras 26–27, 75 MPLR (5th) 179 [City Centre]). In appeals ofthis nature, that standard of review often requires this Court to examine whether the Committee (

i) correctly identified and (ii) correctlyapplied the applicable standard of review. [16] In this case, the Committee applied a standard of reasonableness to its review of the Board’s findings of fact and mixed fact andlaw, instructing itself as follows: [10] Based on the Court of Appeal’s direction in City Centre Equities Inc. v Regina (City), 2018 SKCA 43 (paras [98] – [101]), we reviewthe Board’s findings of fact, and of mixed fact and law on a reasonableness standard.

If the findings of fact are supported by the evidenceor are not otherwise unreasonable, this Committee will not interfere with the Board’s factual conclusions. [17] In this respect, the Committee correctly interpreted the guidance regarding the applicable standard of review provided by thisCourt in City Centre, where Whitmore J.A. explained: [99] The Committee’s role within the assessment regime supports a deferential standard of review on questions of fact. The Committeeis an appellate tribunal charged with hearing and determining appeals. Unlike the Board, it is not a tribunal of first instance.

The Boardreceives evidence and hears witnesses. The Committee reviews the record of the Board and only hears new evidence in narrowcircumstances, not unlike the role of an appellate court. Consequently, it fulfills a traditional appellate role in that it determines appeals onthe 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 theCommittee 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 appropriatestandard 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 noextricable 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 theLegislature intended.

While deference must be afforded to the Board’s findings of fact, the Committee must be empowered to intervenewhere such findings are unreasonable or unsupported by the evidence. … [18] While a question may arise as to whether the standard of review to be applied by the Committee to decisions of the Board onquestions of fact or of mixed fact and law has been changed by the decision in Canada (Minister of Citizenship and Immigration) vVavilov, 2019 SCC 65, 441 DLR (4th) 1 [Vavilov], that is not a question that needs to be addressed in this decision.

I say this for severalreasons. [19] First, neither party took issue on this appeal with Committee’s identification of the standard of review to be applied to theBoard Decision; both proceeded from the basis that the Committee properly instructed itself in accordance with the standard defined inCity Centre. [20] Second, there is no dispute about whether the error the Committee found the Board to have committed, namely improperlyreading s. 39(b)(

i) of the Regulations, was a material error of law and, thus, one that permitted the Committee to intervene (see, forexample: City Centre at para 99; Regina (City) v Laing Property Corporation (1995), (SK CA), 128 Sask R 29 atpara 29 (CA) [Laing]; and Big River (Rural Municipality) v Pettigrew, 2021 SKCA 30 at paras 45–47). [21] Finally, Freeborne concedes that, having found such error, it was open to the Committee to go on and either confirm or modifythe decision of the Board, rather than remitting the matter to the assessor, because the necessary factual foundation existed to permit thelaw to be properly applied. Freeborne, of course, argues that the Committee erred in its

interpretation of s. 39(b)(

i) and erred in applying itto the facts of this case. [22] All of that sorted, Freeborne’s appeal, in my view, must fail. This is because the Committee (

i) correctly identified the errors in

the Board Decision; (ii) correctly identified the manner in which s. 39 of the Regulations should have been applied in the circumstances of this case; and (iii) correctly identified the factual matrix in which to apply s. 39 . 1. The Committee correctly identified the errors in the Board Decision [ 23 ] As set out in the portions of the Committee Decision reproduced above, the Committee found that Board had erred by failing to consider the presence of the word “potential” in s. 39(b)(

i) of the Regulations and by failing to consider s. 39(

f) at all. This, according to the Committee, was an error because it meant the Board concentrated on the present use of the Land, rather than on the “future state of the property” when determining whether it had been properly classified (at paras 22–24). [ 24 ] In my view, the Committee was correct in reaching that conclusion. Let me explain why I find that to be the case. [ 25 ] I begin with the relevant provisions of The Municipalities Act , SS 2005, c M-36.1 [ Act ], and Regulations .

Part X of the Act deals with property assessment for the purpose of taxation. It defines how municipalities are to establish and administer schemes for assessing and taxing property. One aspect of property assessment is property classification.

Section 196 of the Act provides the Lieutenant Governor in Council with the power to make regulations establishing property classes and tasks assessors with determining how property should be classed. It reads, in relevant part, as follows: 196

(1) The Lieutenant Governor in Council may make regulations: (

a) establishing classes of property for the purposes of this section; and (

b) setting percentages of value that are applicable to classes of property established pursuant to clause (a).

(2) Classes of property established pursuant to subsection (1) may be all or any of the following: (

a) classes of land; (

b) classes of improvements; (

c) classes of land, improvements or both.

(3) The assessor shall determine to which class established pursuant to the regulations, if any, any property belongs. [ 26 ]

Part V of the Regulations concerns classification of property for the purpose of tax assessment. In that respect, s. 39 establishes eight different classes of property: (

a) Non-arable (Range) Land and Improvements; (

b) Other Agricultural Land and Improvements; (

c) Residential; (

d) Multi-Unit Residential; (

e) Seasonal Residential; (

f) Commercial and Industrial; (

g) Elevators; and (

h) Railway Rights of Way and Pipeline. Categories (

b) and (

f) are pertinent to this appeal. The relevant portions of s. 39 read as follows: 39 The following classes of property are established pursuant to clause 196(1) (

a) of the Act : … (

b) Other Agricultural Land and Improvements, which includes only land and improvements, other than occupied dwellings: (

i) for which the predominant potential use is cultivation, determined as the best use that could reasonably be made of the majority of the surface area; … (

f) Commercial and Industrial, which includes only land and improvements: (

i) used or intended to be used for business purposes, including land and improvements for office, wholesale, retail, service, hotel, motel, industrial and manufacturing activities and transportation, communications and utilities; … [ 27 ] As can be seen from the wording of the relevant portions of the Regulations , the first error identified by the Committee is obvious. When the Board cited s. 39(b)(i), it clearly omitted the word “potential” and focused only on the “predominant use” of the Land, which it found to be “cultivation” ( Board Decision at para 14).

It is self-evident that a potential use may be different than an actual use. The Board’s failure to consider the word “potential” was inarguably material. [ 28 ] The basis of the second error identified by the Committee is found in the concept of assessor discretion and how it intersects with the function of the Board on an appeal. As is clear from the wording of s. 196(3) of the Act , it is the assessor’s role to make the initial determination as to which class, if any, property fits into. This determination involves a measure of discretion on the part of the assessor.

Where an assessor makes a determination in accordance with s. 196(3) , the Act provides for a right of appeal to the Board. In such appeals, the initial assessment is presumed to be correct and the appellant has the onus of establishing, on a balance of probabilities, that the assessor has erred in fact, law or assessment principle and practices.

If such error is not demonstrated, the Board cannot intervene (see Co- op Refineries at para 50 ; Saskatoon (City) v Walmart Canada Corp . , 2018 SKCA 2 at para 69 [ Walmart 2018 ] ; and Saskatoon (City) v Victory Majors Investments Corporation, 2020 SKCA 59 at paras 62–70 ). [ 29 ] In this case, the assessor determined that the Land should be classed as “Commercial and Industrial” land, within the meaning of s. 39 (f)(

i) of the Regulations . Freeborne appealed the assessment. The Board was required to presume the assessor’s determination on classification to be correct unless Freeborne demonstrated an error on the part of the assessor, which meant bearing in mind the use or intended use of the Land. Even though the Board found that the Land had been “zoned industrial at the request of [Freeborne]” (at para

12), there is nothing in the Board’s reasons to indicate that it considered what that request said about Freeborne’s intended use of the Landand nor is there any indication that the Board looked beyond the present use in determining whether Freeborne had overcome thepresumption that the initial assessment was correct. Accordingly, the Committee was correct to find that the Board had erred by failing toconsider s. 39(f)(

i) of the Regulations. 2. The Committee correctly identified the manner in which s. 39 of the Regulations should havebeen applied in the circumstances of this case [30] The Committee determined that, because of the wording of the applicable portions of the Regulations, proper classification ofthe Land in this case required, at the very least, consideration of a “future state of the property” (at para 24) as opposed to permitting thecurrent use to be determinative. This, in my view, is a correct

interpretation of ss. 39(

b) and (f). [31] Any exercise in the

interpretation of statutes or regulations must begin with s. 2-10 of The Legislation Act, SS 2019, c L-10.2. Itreads: 2-10(1) The words of

an Act and regulations authorized pursuant to

an Act are to be read in their entire context, and in their grammaticaland ordinary sense, harmoniously with the scheme of the Act, the object of the Act and the intention of the Legislature.

(2) Every Act and regulation is to be construed as being remedial and is to be given the fair, large and liberal

interpretation that bestensures the attainment of its objects. [32] The wording of s. 2-10(1), of course, is a codification of what has often been referred to as the modern principle of statutoryinterpretation first endorsed by the Supreme Court of Canada in Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 SCR 27at para 21. The modern principle recognizes that the plain language of the statutory or regulatory provision in question is always thestarting point of an exercise in

interpretation, but not necessarily the ending point. The modern principle and s. 2-10 of The Legislation Actdemand a purposive analysis, as Jackson J.A. recently explained in Farm Credit Canada v Gustafson, 2021 SKCA 38: [58] At least since the Supreme Court released Rizzo in 1998, courts have been required to adopt a purposive analysis “in every case”,not just when there has been a suggestion of ambiguity or absurdity (Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed(Markham, Ont: LexisNexis, 2014) at 261 [Sullivan]).

In some cases, the interpretive exercise can be abbreviated because the purpose isrevealed or can be inferred from the text itself (Sullivan at 281). In other cases, meaning will be revealed only by the discipline of apurposive analysis and a review of the s. 2-10 factors. Much will depend on context, evidence and argument such that it is difficult togeneralize as to which aspects of s. 2- 10 will be relevant in any given exercise of statutory

interpretation. As Iacobucci J. indicated in BellExpressVu, the s. 2-10 factors are not water-tight; they are connected. One thing though is clear, legislative purpose is taken into accountin every case and at “every stage of

interpretation, including initial determination of a text’s meaning” (Sullivan at 259). [33] The Act sets up a comprehensive scheme for the assessment and taxation of real property in a municipality. Local governmentauthorities depend upon municipal property taxes as their primary source of revenue. The scheme in the Act works in conjunction with theprovisions of various other pieces of legislation, including the Regulations, and The Assessment Management Agency Act, SS 1986, c A-28.1, to provide for, and set the parameters of, regular assessment of property to determine its value for tax calculation purposes.

As partof that scheme, assessors are tasked with determining property classification and conducting the necessary assessments. [34] The object of this statutory scheme for property classification and assessment is to arrive at an assessed value of real propertythat bears a fair and just proportion to other assessed property value (Laing; Amoco Petroleum Co. v Saskatchewan AssessmentManagement Agency, 2000 SKCA 91 at para 21, 199 Sask R 111). This objective is embodied in s. 195(5) of the Act, which provides that“[t]he dominant and controlling factor in the assessment of property is equity”. [35] In my view, an

interpretation that gives effect to the ordinary meaning of the text of ss. 39(b)(

i) and (f)(

i) is consistent with thislegislative purpose. In that respect, s. 39(b)(

i) of the Regulations reads as follows: (b) “Other Agricultural Land and Improvements, which includes only land and improvements, other than occupied dwellings: (

i) for which the predominant potential use is cultivation, determined as the best use that could reasonably be made of the majority of thesurface area; [36] In examining the plain wording of this provision, one’s attention is immediately drawn to two phrases: “predominant potentialuse”, and “best use that could reasonably be made”. The word “predominant” is synonymous with such terms as “prevailing” or“primary”. The word “potential”, when used as an adjective - as it is in s. 39(b)(i) - connotes something that is “possible” or “capable ofcoming into being”.

The phrase “best use that could reasonably be made” suggests that the assessment must be objective rather thanboundlessly aspirational. [37] These phrases, when given their ordinary meaning, speak of possibility.

They are consistent with a legislative intention topermit assessors to make classification decisions based not only on the current predominating use being made of land but with reference tofuture possibilities that are reasonably capable of being realized, if that is what is necessary to achieve equity. [38] In a similar vein, s. 39(f)(i), which states that Commercial and Industrial land includes land that is “used or intended to be usedfor business purposes” speaks of future possibilities and directs focus not only to the current use, but also on a potential different futureuse, if one is intended by the owner of the land. [39] In my view, there is no contextual reason to reject the ordinary meaning of these provisions.

Interpreting them in a mannerconsistent with their ordinary meaning recognizes the scheme and purpose of the Act and the Regulations as they relate to classification ofproperty for tax assessment purposes. Land use is not static. Property can be purchased and sold. Buildings can be erected and torn down.Other improvements may be added or removed. Community plans change. Developers come and go. The tax assessment scheme set out inthe Act recognizes that a measure of flexibility is required to account for these changing conditions and to achieve the overarching

requirement of equity. The Committee was correct to conclude that ss. 39 (b)(

i) and 39 (f)(

i) require consideration of not just the present, but also the future state of the property. [ 40 ] This does not mean that the present use of a property is irrelevant in determining its proper classification. Present use is, however, only one factor among many to be considered in determining whether cultivation is the “predominant potential use” of property within the meaning of s. 39 (b)(

i) of the Regulations or whether the land is “used or intended to be used” for business purposes within the meaning of s. 39 (f)(i). When read in a fashion consistent with the scheme and purpose of the Act and Regulations, determining proper classification under s. 39 (b)(

i) and 39 (f)(

i) of the Regulations necessarily requires consideration of the entire relevant factual matrix, including such other things as the nature of the land itself, its location, the history of its acquisition and disposition, zoning requirements, statements (if any) about the owner’s intended use, the manner in which similar properties in the immediate vicinity are being used and how those properties have been classified. This list, of course, is non-exhaustive and none of the factors mentioned, individually, are necessarily determinative.

Suffice it to say that, in the context of an appeal from a property classification, the evidence must be examined with an eye to considering all factors that bear on whether the assessor made an error in determining which class, if any, the property belongs to. 3. The Committee correctly identified the factual matrix in which to apply s. 39 [ 41 ] In this case, the assessor had classified the Land as “Commercial and Industrial” within the meaning of s. 39 (f)(

i) of the Regulations . That means the Board was required to start from the presumption that the assessment was correct, unless Freeborne could rebut it. The Board reached the conclusion it reached on the basis of a legal error.

Once the Committee determined that a legal error had been made by the Board, it was entitled, in accordance with s. 256(1) of the Act , to either confirm the Board’s decision, or modify it to correct any errors made by either the Board or the assessor with respect to classification, or to set aside the assessment and remit the matter to the assessor to correct errors and omissions. [ 42 ] Here, the Committee identified a number of factors, all of which pointed to the conclusion that there had been no error in the original classification determined by the assessor.

In that regard, the Committee found that: [23] Based on the evidence before the Board, it is fundamentally clear the land was acquired to be used for industrial purposes. It is clear that Freeborne worked with the RM on rezoning. The sales documentation referred to indicated this is a commercial real estate play. Freeborne confirmed in argument the acquisition of the property was done on the basis of a commercial industrial real estate play. [ 43 ] In my view, the Committee correctly identified the factual matrix that was relevant to determining the proper classification of the Land.

There was clear evidence that Freeborne’s initial intention in acquiring the Land had been to develop it as an industrial park. In that regard, Freeborne submitted a detailed proposal for re-zoning and subdividing the land and worked actively with the R.M. to change the zoning from agricultural to M-2 Rural Light Industrial in 2012. In 2017, the R.M. rezoned the Land to M-1 Light Industrial.

Later that year, Freeborne advertised the property for sale as Commercial property. [ 44 ] In addition, the Committee observed there was evidence that several properties immediately adjacent to the Land, which were zoned and assessed as Commercial Land, were being used as Light Industrial Park. The Committee also observed that the current agricultural use Freeborne was making of the land was non-compliant with the Zoning Bylaw .

Those facts were relevant to the determination of whether agricultural use was the predominant potential use. [ 45 ] Freeborne argues that the Committee placed excessive reliance on the issue of zoning, describing it as a “red herring”. With respect, I see no error in the way the Committee approached the evidence regarding zoning.

There is support in the jurisprudence for the proposition that zoning is a relevant consideration in determining whether properties are similar for the purpose of tax assessment, in that it is relevant to what use may potentially be made of property (see, for example: Ross v Assessor of Area #10 – Burnaby/New Westminster, 2000 BCCA 5 at paras 13–15 , 9 MPLR (3d) 298), but it is not determinative (see: Various (Altus) v Estevan (City) and Estevan (Rural Municipality) , 2020 SKMB 13 at para 39 ).

Here, I see no indication that the Committee treated zoning as determinative of the question of whether the Land’s predominant potential use was cultivation, under s. 39 (b)(i). As I read the Committee Decision, the Committee considered the purpose for which Freeborne initially acquired the Land, its efforts to change the zoning of the land from Agricultural to Industrial in 2011-2012 and its attempt to sell the Land as commercial property in 2017 as evidence that was indicative of Freeborne’s intended use of the land under s. 39 (f)(i).

This, in my view, was a proper approach for the Committee to have taken. [ 46 ] Bearing in mind the presumption that the original classification determination made by an assessor is presumed to be correct unless error is demonstrated, the Committee’s decision to reinstate the original classification cannot be said to be incorrect. Having found, as the Committee did, that the Land was intended to be used as commercial property, it follows that the Land had been properly classified by the assessor as Commercial and Industrial Land under s. 39(f)(

i) of the Regulations and, as such, there was no error that permitted the Board to intervene. Accordingly, the Committee was correct to overturn the Board Decision and to reinstate the assessor’s original classification of the Land. [ 47 ] In light of that conclusion, it is not necessary to resolve the question of whether 39(b)(

i) should be prioritized over 39(f)(

i) if the Land may reasonably have been classified under either subsection. If there was no error in the original classification, then neither the Board nor the Committee could properly overturn that classification just because an argument could be made that it also was possible to have slotted it into a different category. V. CONCLUSION [ 48 ] For the foregoing reasons, Freeborne’s appeal is dismissed. The R.M. is entitled to costs, both for the appeal and the leave application, calculated in the usual way. “Kalmakoff J.A.” Kalmakoff J.A.

I concur. “Jackson J.A.” Jackson J.A. I concur. “Tholl J.A.” Tholl J.A.