SBLP Southland Mall Inc. Appellant (Appellant) v. City of Regina and Saskatchewan, 2022 SKCA 115

Court of Appeal for Saskatchewan Docket: CACV3642 Citation: SBLP Southland Mall Inc. v Regina (City), 2022 SKCA 115Date: 2022-10-06 Between:SBLP Southland Mall Inc.Appellant (Appellant)AndCity of Regina and Saskatchewan Assessment Management AgencyRespondents (Respondents)Before: Caldwell, Whitmore and Leurer JJ.A. Disposition: Appeal allowed; matter remittedWritten reasons by: The CourtOn appeal from: 2020 SKMB 22 , 2020 SKMB 022Appeal heard: March 2, 2022Counsel: Leonard D. Andrychuk, K.C., and Allison L. Graham for the Appellant Jayne C. Krueger for the City of Regina The Court I.

OVERVIEW [1] SBLP Southland Mall Inc. [Southland] appeals against the decision of the Saskatchewan Municipal Board AssessmentAppeals Committee [Committee] in SBLP Southland Mall Inc. v City of Regina, 2020 SKMB 22 [Committee Decision]. [2] This judgment answers two legal questions under The Cities Act, SS 2002, c C-11.1, regarding (

i) the disclosure obligations ofassessors and (ii) the jurisdiction of the Committee to address concerns about the procedural fairness of proceedings before boards ofrevision. In answering these questions, we examine the different duties of fairness owed by assessors and boards of revision asadministrative decision-makers. [3] Having received the benefit of the written and oral submissions in this appeal, we confirm that assessors and boards ofrevision each owe a duty of fairness.

Following the analytical framework in Baker v Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR 817 [Baker], and interpreting The Cities Act, we conclude that assessors may disclose informationabout assessments to the assessed persons upon request but that assessors are only obliged to do so in the context of an assessment appealunder s. 200(4) of The Cities Act.

We further find that boards of revision have a duty to ensure that their proceedings are conducted in aprocedurally fair manner, which includes ensuring that assessors, cities and assessed persons have abided by their obligations pursuant tos. 200 of The Cities Act.

Lastly, we affirm that the Committee has the jurisdiction to remedy failures by boards of revision to ensure thattheir proceedings are conducted in a procedurally fair manner. [4] In the result, we declare the Committee Decision void ab initio and conclude that this matter must be remitted to theCommittee for disposition in accordance with the law set forth in this judgment. II. BACKGROUND A. 2019 Assessment [5] Southland owns an enclosed shopping centre [Mall] located in Regina, Saskatchewan.

In 2019, the assessor for the City ofRegina [Assessor] estimated its value for tax purposes to be $135,226,200 under the enclosed shopping centre model [ESC Model]. TheESC Model employs the income approach to valuation, and utilises the rents received by owners of similar properties and a capitalisationrate derived from sales of similar properties. In this case, the Assessor examined the rental rates of 344 leased commercial rental units[CRUs] in the five enclosed shopping centres located in Regina and developed a rent model [Rents Model] using multiple regressionanalysis and statistical testing.

Southland, however, disagreed with the Assessor’s stratification (or grouping) of the Mall with anotherenclosed shopping centre (the Cornwall Centre) when preparing the Rents Model. In its view, the two properties were not similar in termsof their typical rental rates. Southland also submitted that the properties had been grouped together only because the Assessor needed twoproperties for statistical testing purposes. B. Pre-hearing discussions and mid-hearing disclosures [6] Southland attempted to acquire the CRU data used in the assessment of the Mall in discussions with the City.

It also obtaineda subpoena from the board of revision for the City of Regina [Regina BOR] to compel the production of that data by the Assessor.Southland identified disclosure of the CRU data as an issue in its written submissions to the Regina BOR. In their joint submission to andfilings with the Regina BOR, the City and the Assessor provided some of the CRU data used in the assessment. In its reply submission,Southland took the position that not all of the relevant data had been disclosed.

[7] When the hearing commenced before the Regina BOR (on Thursday, March 28, 2019), Southland sought an order to compelthe Assessor to provide further disclosure in accordance with the subpoena. In dismissing that request, the Regina BOR split, with two ofits members denying the order and the third abstaining from the decision. Southland obtained a ten-minute recess after which the Assessoradvised the Regina BOR that it had inadvertently omitted filing some CRU rental data for three Regina shopping centres that had not beenstratified with the Mall.

Southland requested an adjournment for the remainder of the day and again sought an order to compel theAssessor to comply with the subpoena. [8] The Regina BOR declined to order further production, finding that the subpoena had been satisfied. Following this, theAssessor provided the omitted CRU data to Southland. At this point in the hearing, Southland reasserted its request for an adjournment,asking for 30 days to review the newly disclosed CRU data. The City and the Assessor objected.

While the Regina BOR consideredadjourning until Monday, April 2 or Tuesday, April 3, it adjourned its proceedings to the next morning (Friday, March 29, 2019) becausethe Assessor was not available on the later dates. [9] When the hearing reconvened, Southland took the position that it had not had sufficient time to meaningfully consider thenewly disclosed CRU data and that this circumstance had undermined its right to be heard. The Regina BOR proceeded with the hearingbut Southland declined to participate in it, electing not to cross-examine the Assessor and making no arguments about error in theassessment.

In the result, under a decision dated May 7, 2019 (SBLP Southland Mall Inc. v City of Regina (7 May 2019) Regina, Appeal#2019-28555 [BOR Decision]), the Regina BOR dismissed Southland’s assessment appeal. In its decision, the BOR questioned whether ithad the authority to order disclosure by the Assessor. C.

Committee decision [10] Southland appealed against the BOR Decision, arguing that the Assessor had breached its duty of fairness by its late disclosureof the omitted CRU data and that the Regina BOR had breached its duty of fairness by failing to give it a meaningful opportunity toreview that data. [11] In the Committee Decision, the majority of the Committee addressed the procedural fairness arguments under the principles setforth in Baker.

In the result, the Committee sustained the Regina BOR’s rejection of a 30-day adjournment, saying that Southland hadfailed to establish why it would need that length of time to review the omitted data. Having found no error in the rejection of theadjournment request, the Committee dismissed Southland’s appeal. The Committee did not otherwise speak to the late disclosure of CRUdata by the Assessor. III. ISSUES AND ANALYSIS [12] Southland obtained leave to appeal against the Committee Decision on the following questions of law: (

a) What is the nature and extent of an assessor’s duty of disclosure under The Cities Act? (

b) Does the Committee have the jurisdiction to address allegations of a denial of procedural fairness at a board of revision assessmentappeal hearing? (

i) If so, what is the scope or extent of that jurisdiction and what is the standard of review to be applied by the Committee? (ii) If so, did the Committee misconstrue or exceed its jurisdiction in the circumstances of this assessment appeal? [13] Framed in this way, the appeal does not ask whether a duty of fairness is owed by assessors or boards of revision; rather, theissues it raises relate to (

a) the scope of the duty owed by assessors with respect to disclosure, (

b) the scope of the duty owed by boards ofrevision and the authority of boards to deal with matters of fairness arising from their own proceedings, and (

c) the remedial jurisdictionof the Committee in matters of procedural fairness raised before it. Nonetheless, because the City argues that the common law duty offairness has been displaced by The Cities Act, before we address the specific issues raised in this appeal, it is necessary to address apreliminary question as to whether assessment appraisers (and assessors who fulfil that function) owe a duty of fairness when carrying outtheir statutory responsibilities. A.

Do assessment appraisers owe a duty of fairness? [14] We begin by confirming that assessment appraisers, and assessors who carry out that function[1], are administrative decision-makers (Affinity Holdings Ltd. v Shaunavon (Town), 2022 SKCA 83 at paras 8 and 22–27 [Affinity]).

Boards of revision and theCommittee are also administrative decision-makers (Affinity at paras 51–58). [15] As such, assessors, boards of revision and the Committee are independently obliged to abide by the principles of natural justiceand procedural fairness (Baker at para 20; Cardinal v Director of Kent Institution, (SCC), [1985] 2 SCR 643 at 653[Cardinal]).

As the Court explained in Moreau-Bérubé v Nouveau-Brunswick (Judicial Council), 2002 SCC 11 at para 75, [2002] 1 SCR249: [75] The duty to comply with the rules of natural justice and to follow rules of procedural fairness extends to all administrative bodiesacting under statutory authority (see Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, (SCC), [1979] 1 S.C.R. 311; Cardinal v. Director of Kent Institution, (SCC), [1985] 2 S.C.R. 643, at p. 653; Baker, supra,at para. 20; Therrien, supra, at para. 81).

Within those rules exists the duty to act fairly, which includes affording to the parties the right tobe heard, or the audi alteram partem rule. The nature and extent of this duty, in turn, “is eminently variable and its content is to be decidedin the specific context of each case” (as per L’Heureux-Dubé J. in Baker, supra, at para. 21). …

(Emphasis added) [16] In Baker, the Court stated that the “flexible and variable” duty of fairness “depends on an appreciation of the context of theparticular statute and the rights affected” (at para 22). In this regard, we also note that The Cities Act allows boards of revision to makerules to govern their proceedings provided that those rules “are consistent with this Act and with the duty of fairness” (s. 203(4)).

For thisand other reasons, we reject out of hand the City’s proposition that the provisions of The Cities Act have supplanted the common law dutyof fairness. [17] As we see it, the relevant provisions of The Cities Act help to elucidate the content of the duty of fairness as it arises in itsseveral contexts under that statute. That is to say, while each of the administrative decision-makers in question owes a duty of fairness, thecontent or scope of the duty that is owed by each falls to be determined by reference to, among other factors, the provisions of The CitiesAct.

In this way, the duty may differ by reason of the different natures of the decisions being made at each level of the statutoryassessment regime, but that regime must not be taken as establishing a complete code of the procedural fairness requirements at any of itslevels. As the Court made clear in Baker, this is the proper approach to determining the content of a duty of fairness. As noted, in thatdecision, the Court stated that “the duty of fairness is flexible and variable, and depends on an appreciation of the context of the particularstatute and the rights affected” (at para 22).

It then set out five non-exhaustive factors that can affect the content of a duty of fairness, asfollows: (

a) the “nature of the decision being made and the process followed in making it” (at para 23); (

b) the “nature of the statutory scheme and the ‘terms of the statute pursuant to which the body operates’” (at para 24, referring toOld St. Boniface Residents Assn. Inc. v Winnipeg (City), (SCC), [1990] 3 SCR 1170 at 1191); (

c) the “importance of the decision to the individual or individuals affected” (at para 25); (

d) the “legitimate expectations of the person challenging the decision” (at para 26); and (

e) the “choices of procedure made by the agency itself” (at para 27). All of which is expanded upon at some length in Baker. [18] By way of a final preparatory comment, whenever this Court interprets The Cities Act, we are mindful of the instructions in TheLegislation Act, SS 2019, c L-10.2, s 2-10, that the words of

an Act and its regulations “are to be read in their entire context, and in theirgrammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act and the intention of the Legislature” andthat 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”. [19] With the framework for analysis in place, and having confirmed that assessors owe a duty of fairness to those affected by theirdecisions, we turn to answer the specific questions of law raised in this appeal. B.

What is the nature and extent of an assessor’s duty of disclosure? [20] To contextualise Baker, the principle that underpins an assessor’s duty of procedural fairness (and thereby affords participatoryrights to assessed persons) requires that assessments be made “using a fair and open procedure” that is appropriate in the “statutory,institutional, and social context” of the regime established under The Cities Act, where assessed persons have the opportunity to “putforward their views and evidence fully and have them considered” by the assessor (at paras 22 and 28).

An assessor’s disclosureobligations fall within the “open procedure” or “open process” aspect of this principle. [21] Further, the phrase “appropriate to the statutory, institutional, and social context of the decision” is, in our view, key todetermining the extent of assessors’ duty of fairness. This necessarily requires an examination of how the statutory appeal regime affectsthat duty.

While this appeal does not ask directly about the scope of assessed persons’ participatory rights to “put forward their views andevidence fully and have them considered” by boards of revision, how the statutory scheme affects those rights is material to theassessment of an assessor’s duty of fairness.

Put another way, the property-assessment and the internal-appeals regimes established by theLegislature are relevant and material factors in the determination of the content of an assessor’s duty of fairness—and, specifically, thescope of an assessor’s disclosure obligations within that duty—under the Baker framework of analysis. 1.

The nature of the statutory scheme for property assessment and for assessment appeals and theprovisions of The Cities Act pursuant to which assessors and boards of revision operate [22] Although it is the second factor identified in Baker, in the context of this appeal, there are good reasons to start our analysisunder the Baker framework with an examination of the nature of the statutory scheme and the provisions of The Cities Act under whichassessors and boards of revision operate.

In that regard, it is important to have in mind four broad points about the statutory scheme thatthis Court has confirmed in its prior jurisprudence: (

a) property assessment is based on mass appraisal (The Cities Act, s. 165(1)); (

b) when appealed, assessments are presumptively correct (Affinity at paras 65-66); (

c) an appellant must identify “the specific grounds on which it is alleged that an error exists” and “the particular facts supportingeach ground of appeal” (The Cities Act, ss. 197(6)(

a) and (b)); and (

d) boards of revision review appealed assessment decisions for error on the record (The Cities Act, s. 197(1)(b)). These aspects of the statutory scheme necessarily affect, in one way or another, the nature of assessed persons’ opportunity to “fully and

fairly” present in an “open process” their case about property values or about assessment errors. [ 23 ] To explain, assessment under mass appraisal does not require much front-end interaction between assessed persons and assessors because it involves the preparation of assessments “for a group of properties…using standard appraisal methods, employing common data and allowing for statistical testing” ( The Cities Act , s. 163 (f.3)). Generally speaking, the nature of mass appraisal forestalls assessed persons of the opportunity to “put forward their views and evidence fully and have them considered” by assessors.

This fact augurs strongly against a finding that assessors have a robust duty of fairness in terms of affording participatory rights to assessed persons when assessors are making their decisions. [ 24 ] On the other hand, mass appraisal and the presumption of correctness in an assessment appeal tend to work in favour of a finding that assessors become subject to a disclosure obligation once assessed persons have appealed to a board of revision.

This is in part because an appellant must identify “the specific grounds on which it is alleged that an error exists” in an assessment and “the particular facts supporting each ground of appeal” (ss. 197(6)(

a) and (b)). If assessed persons know the changes to the assessment roll that they desire, they must also set that out in their notices of appeal (s. 197(6)(c)). In jurisdictional terms, in GFL Environmental v Edenwold (Rural Municipality) , 2020 SKCA 89 at para 55–56 [ GFL Environmental ], this Court confirmed that boards of revision are restricted to considering the specific errors identified in notices of appeal.

This indicates that an appellant should have access to the information needed to form a reasoned belief that a specific error has been made in the valuation or classification of property or in the preparation or content of the relevant assessment roll or assessment notice (see, ss. 197(1)(

b) and (3)). [ 25 ] In terms of adjudicative function, as this Court examined in Affinity , boards of revision hear evidence and argument, make findings of fact and draw conclusions relevant to the specific allegations of error set out in notices of appeal ( The Cities Act , ss. 203 , 205 and 206 ).

Approaching appeals with the presumption that assessments are correct until proven otherwise, boards interpret assessment law and assessment practice as it relates to the errors alleged in notices of appeal, and in some cases make findings of fact, and then apply their conclusions in that regard to the facts and decide whether assessments are the product of error (s. 210(1); Affinity at para 55 ). [ 26 ] However, as this Court recognised in Estevan Coal Corp. v Estevan (Rural Municipality No. 5) , 2000 SKCA 82 , 199 Sask R 57 [ Estevan Coal ] at paras 46-49 , assessed persons may not have ready access to the evidence that affected the preparation of their assessments.

In Affinity , this Court explained that the Legislature recognised this imbalance and established an assessment appeal regime that affords assessed persons access to the basis in fact that gave rise to assessments that are appealed. This right of access is found in s. 200(4) (

a) and (

b) of The Cities Act , under which assessors must, at least 10 days prior to hearings before boards of revision, file “the assessment field sheet” and a “written explanation of how the assessment was determined”. Below, we explore further the effect on an assessor’s duty of fairness of this disclosure requirement, noting that there are other points where pre-appeal and pre-hearing disclosure can occur under The Cities Act . [ 27 ] We turn on this broad footing to examine more closely under the Baker approach the disclosure-related provisions of the statutory regime and the principles of fairness it engages. 2.

The nature of the decisions being made by assessors and boards of revision and the process followed in their making [ 28 ] Under this Baker factor, we start by identifying how assessors obtain some of the information they use when estimating the values of properties under mass appraisal.

In this regard, s. 171 of The Cities Act imposes on any person who owns, uses, occupies, manages or disposes of a property an obligation to provide assessors with any requested information about that property that relates to or might relate to the value of the property. [ 29 ] In Saskatoon (City) v West Coast Reduction Ltd. , 2019 SKCA 48 , this Court described the intent and purpose of s. 171 as well as s. 172, which sets out mechanisms to enforce the obligations imposed under s. 171 , in these terms: [12] As can be seen from these provisions, not only has the Legislature empowered assessors to obtain market value data, but it has imposed under s. 171 a broad statutory duty on property owners and others to provide assessors with the information they need along with a corresponding duty to ensure that any information so provided is “complete, true and accurate” to the best of the knowledge of the person providing it.

This reflects the importance the accuracy and currency of market value data has to the integrity of the mass appraisal process. [13] The Legislature has also signaled the importance of these statutory duties by making failure to comply with them an offence punishable on

summary conviction under s. 172(2) of The Cities Act . In addition, s. 172 contains a number of economic penalties designed to ensure that property owners and others adhere to their statutory duties under s. 171. … [ 30 ] For the purposes of this appeal, we note that the Legislature imposed an obligation of confidentiality on any person who acquires access to information or documents obtained pursuant to s. 171 of The Cities Act , but nevertheless allowed for the use and disclosure of such information and documents for property valuation and assessment appeal purposes or where the identity of the person to whom the information relates is protected: 171

(5) Subject to subsection (6), every person who, in the course of his or her duties, acquires or has access to any information or document obtained pursuant to subsection (1), (2), (3) or (4.1) shall: (

a) keep that information or document confidential; and (

b) not make any use of or disclose that information or document without the consent of the person to whom the information or document relates.

(6) A person mentioned in subsection (5) may use or disclose the information or document mentioned in that subsection: (

a) to determine the value of any property;

(

b) for the purposes of an appeal to a board of revision, the appeal board or the Court of Appeal; or (

c) if the use or disclosure does not identify the person to whom the information or document relates. [ 31 ] While the Legislature may be taken to have understood that persons would have access to the information collected by assessors under ss. 171(1), (2), (3) and (4.1), the persons to whom ss. 171(5) and (6) refer are those who acquire or obtain such access “in the course of his or her duties”.

We interpret this as a reference to individuals who are engaged in the employ of a city (or the Saskatchewan Assessment Management Agency) and who, by reason of their employment duties, acquire or obtain access to the information in question.

In this sense, the statute protects the confidentiality of the s. 171 information when it is held by assessors and cities but allows for its use in assessment appeals. [ 32 ] In broad terms, we further conclude that the confidentiality of information collected by assessors or used in the preparation of an assessment, regardless of its nature, is not something that generally prevents its disclosure to assessed persons. Section 171(6) expressly authorises the disclosure and use by assessors and cities of such information for the purposes of an assessment appeal.

In this way, the procedure aligns with what occurs in civil litigation where the confidentiality of information does not exempt it from disclosure, although it is subject to an implied undertaking that it will not be used for a collateral or ulterior purpose (now codified in The Queen’s Bench Rules , r. 5-4).

Under The Cities Act , the corollary to the implied undertaking rule states that, if any party to an assessment appeal believes that the evidence on which they intend to rely contains commercially or otherwise sensitive information, they may declare it to be confidential and seek an undertaking from the other parties limiting its use outside of the appeal hearing: Declaration of confidentiality 201

(1) Before providing information to the assessor or any other party to an appeal, the party that is to provide the information may: (

a) declare the information confidential; and (

b) seek an undertaking of the other party that: (

i) all or some of the information provided is provided solely for the purpose of preparing an assessment or for an appeal hearing; and (ii) no other use may be made of the information.

(2) Failure to provide an undertaking pursuant to subsection (1) forfeits the right of the other party to obtain the information being sought by any other process.

(3) No person who is required to comply with an undertaking given pursuant to this

section shall fail to do so. [ 33 ] We recognise that the information involved in an assessment appeal may be quite commercially sensitive at times, such that its disclosure could have the potential to adversely affect the ability of property owners or assessed persons to compete. We further observe that even in civil litigation there are times when parties find the implied undertaking rule to provide insufficient protection. However, the Legislature has provided an additional means for parties at any level of an assessment appeal to protect the confidentiality of information.

Under s. 202 of The Cities Act , any party may apply for an order declaring all or any part of the evidence tendered by that party to be confidential and boards of revision, the Committee and this Court, as the case may be, may make various types of orders tailored to protect the confidentiality of that information: Ruling re confidentiality of information 202

(1) On the request of any party to an appeal, a board of revision, the appeal board or the Court of Appeal may make an order declaring all or any part of the information provided by that party to be confidential if the board of revision, the appeal board or the Court of Appeal determines that disclosure of that information on the hearing of the appeal could reasonably be expected to: (

a) result in financial loss or gain to the party or to any other person; (

b) prejudice the competitive position of the party or of any other person; or (

c) interfere with the contractual negotiations or other negotiations of the party or of any other person.

(2) If a board of revision, the appeal board or the Court of Appeal makes an order pursuant to subsection (1), it may also make all or any of the following orders: (

a) an order that any part of the appeal is to be heard in the absence of the public; (

b) an order that the actual income and expense information for an individual property that forms part of a report, study or transcript be purged or masked before the report, study or transcript is released to the public; (

c) an order that any information that forms part of a report, study or transcript and that identifies a person be purged or masked before the report, study or transcript is released to the public; (

d) any other order respecting procedures to be followed by the parties to the appeal respecting the disclosure or release of any information arising from the appeal.

(3) No order declaring information to be confidential pursuant to this

section prevents full disclosure of that information on an appeal to the appeal board or to the Court of Appeal. [ 34 ] Lastly, we observe the Legislature has provided a means to enforce s. 201 undertakings and s. 202 orders. Section 338(1) (

a) of The Cities Act provides that no person shall “contravene or fail to comply with a provision of this Act or the regulations for which no other

penalty is specifically provided”. Under s. 338(2), “Every person who contravenes [ s. 338(1) ] is guilty of an offence and is liable on

summary conviction” to fines of up to $10,000 for individuals, $25,000 for corporations or, for continuing offences, to a maximum fine of $2,500 for each day that the offence continues. [ 35 ] On the basis of the avenues of protection that the Legislature has made available to all parties under The Cities Act , whether to protect the confidentiality of information obtained or acquired pursuant to s. 171 or otherwise, we conclude that the confidential or commercially sensitive nature of information generally does not—in and of itself—prevent its disclosure by assessors and cities. [ 36 ] We note further that The Cities Act contemplates the external disclosure of information related to assessments beyond those persons described in s. 171(5) and outside of its use in an assessment appeal.

Under s. 173, cities, where they have authorised the disclosure of information related to assessments to the assessed persons, may charge a fee for that service: Fee for access to assessment information 173

(1) If a city authorizes information to show how an assessor prepared the assessment of a person’s property to be furnished to that assessed person or an authorized agent of that assessed person, the city may charge a fee for furnishing that information.

(2) For the purposes of subsection (1), the fee must not exceed the reasonable costs incurred by the city for furnishing the information. [ 37 ] For reference, the term assessed person is described in The Cities Act in this way: Person liable to pay taxes 283

(1) The person liable to pay property tax pursuant to this Act or any other Act is the person who: (

a) at the time the assessment is prepared or adopted, is the assessed person; or (

b) subsequently becomes the assessed person. [ 38 ] In terms of its relevance to the issues in this appeal, the fact that s. 173 of The Cities Act allows cities to charge a fee for the disclosure of information about an assessment to an assessed person further signals a legislative intention that cities will disclose, or to authorise their assessors to disclose, that information to assessed persons.

Further, we infer from the reference to “assessed person” in s. 173(1), rather than to “appellant” or “respondent” as found elsewhere in The Cities Act , that such disclosure may occur in advance of the filing of a notice of appeal to a board of revision. [ 39 ] This understanding of the Legislature’s intention is supported by the fact that assessment notices must include the contact information of the relevant city to enable assessed persons to “discuss the notice of assessment or potential appeal” ( The Cities Act , s. 185(1) (c.1)).

Expressly related to this, appellants must state in their notices of appeal filed with boards of revision “that the appellant and the respondent have discussed the appeal, specifying the date and outcome of that discussion, including the details of any facts or issues agreed to by the parties” or explain why those discussions have not occurred (s. 197(6)(d)). [ 40 ] Reflecting what we interpret as a general intention that pre-appeal discussions between assessed persons and cities will occur and will produce fruit, the Legislature introduced a mechanism for the parties to an appeal to “agree to a new valuation or classification of a property, or to changing the taxable or exempt status of a property”, provided that agreement is reached “before the appeal is heard by the board of revision” (s. 204(1)).

Where settlement agreements resolve “all matters on appeal”, assessors must change the assessment roll accordingly (s. 204(3)). We return, again, to the point that assessed persons may appeal on limited grounds only, namely, that they believe that “an error has been made: (

i) in the valuation or classification of the property; or (ii) in the preparation or content of the relevant assessment roll or assessment notice” (s. 197(1)(b)). [ 41 ] At their least, the provisions of The Cities Act considered above confirm a legislative intention that there will be a disclosure of information by assessors and cities to assessed persons. It stands more compellingly to reason, given the requirements of ss. 185(1) (c.1), 197(1)(

b) and 197(6)(d), and the appeal settlement avenue under s. 204, that the Legislature expected assessed persons to be put in a position to enter into informed discussions with cities about their beliefs that an error was made in the valuation or classification of assessed property or in the preparation or content of the relevant assessment roll or assessment notice.

The Legislature would not have granted assessed persons a limited right to appeal on errors in property classification and valuation, or in how an assessment was prepared, and then have expected them to settle those issues in an informational vacuum. [ 42 ] That said, we agree that, in their grammatical and ordinary sense, none of the foregoing provisions directly or explicitly imposes an obligation on cities or assessors to disclose to assessed persons the information that is relevant to their assessments.

However, neither do these provisions prohibit cities and assessors from doing so. [ 43 ] In terms of legislative intent, we conclude that the aforementioned provisions of The Cities Act are meant to streamline the resolution of assessment appeals in advance of and outside of board of revision hearings. Nonetheless, the pre-appeal discussion and pre- hearing settlement contemplated by The Cities Act does assist with answering the questions raised in this appeal.

We say that because, to effectively curtail property assessment disputes from reaching the appeal stage, each of those processes requires some measure of disclosure by assessors and cities. [ 44 ] Therefore, reading ss. 185(1) (c.1), 197(1)(b), 197(6)(

d) and 204 of The Cities Act in their entire context, harmoniously with the scheme of that Act, the object of that Act and the intention of the Legislature, and consistently with the duty of fairness, we conclude that assessed persons are entitled to ask for—and cities and assessors may chose, but are not obligated, to disclose—the information that is relevant to their assessments at any point following the issuance of the notices of assessment. However, assessors have an obligation to disclose such information in the course of an appeal, which is not, to be clear, an aspect of their duty of fairness but rather is a requirement of the statutory appeal regime.

[ 45 ] To explain our conclusions about an assessor’s obligation to disclose as part of an appeal, we start by confirming that, any party to an appeal must “tender all of the evidence on which he or she relies at or before the board of revision hearing” ( The Cities Act , s. 204 ). More specifically, when assessments are appealed, s. 200 requires and sets timelines for the parties to those appeals and for assessors to disclose the evidence on which they intend to rely in the hearings before the boards of revision. It will be helpful to keep in mind the particulars of s. 200 in this regard: Disclosure of evidence 200

(1) If an appellant intends to make use of any written materials on the hearing of an appeal, at least 20 days before the date set for the hearing the appellant shall: (

a) file a copy of the materials with the secretary of the board of revision; and (

b) serve a copy of the materials on every other party to the appeal.

(2) If a party to an appeal other than the appellant intends to make use of any written materials on the hearing of the appeal, at least 10 days before the date set for the hearing the party shall: (

a) file a copy of the materials with the secretary of the board of revision; and (

b) serve a copy of the materials on every other party to the appeal.

(2.1) If an appellant intends to make use of any written materials on the hearing of an appeal in response to written materials served on him or her pursuant to subsection (2), at least five days before the date set for the hearing the appellant shall: (

a) file a copy of the materials in response with the secretary of the board of revision; and (

b) serve a copy of the materials in response on every other party to the appeal.

(3) If a party does not comply with any of subsections (1) to (2.1), the board of revision may: (

a) accept and consider the material sought to be filed; or (

b) refuse to accept or consider the material sought to be filed.

(4) At least 10 days before the date set for the appeal hearing, the assessor shall file with the secretary of the board of revision and serve a copy on all parties to the appeal: (

a) a complete assessment field sheet; and (

b) a written explanation of how the assessment was determined, including: (

i) a statement indicating whether the assessor considered any decisions of the appeal board pursuant to subsection 165(3.2) in determining the assessment; and (ii) if the assessor did consider one or more decisions of the appeal board in determining the assessment, a statement indicating whether the assessor decided to apply, to apply in part, to apply with modification or not to apply the decision of the appeal board to the assessment and the reasons for that decision.

(5) If an earlier hearing date has been agreed to pursuant to subsection 199(4), the appellant and the assessor are not required to comply with subsections (1) to (4) if they have agreed to dates, before the hearing date, by which they shall disclose to each other and to the board of revision the nature of the evidence that the person intends to present, in sufficient detail to allow the other to respond to the evidence at the hearing. [ 46 ] As noted, this Court has long held that an assessment appeal is a review for error on the record ( Corman Park (Rural Municipality) v 618421 Saskatchewan Ltd. , 2018 SKCA 29 at para 58 , 73 MPLR (5th) 1).

Recently, in GFL Environmental (at para 49 ), this Court held that the parties’ filings under ss. 200(1), (2) and (2.1) are “advocacy and evidentiary material” that stand apart from the “neutral record” the assessor must file under s. 200(4).

In this way, GFL Environmental establishes that s. 200 imposes mandatory pre- hearing disclosure obligations on assessors and cities as well as assessed persons. [ 47 ] Turning to the nature of the administrative decisions being made by boards of revision, we take from s. 200 and other provisions of The Cities Act that hearings before boards of revision are intended to be adversarial, involving written arguments filed in advance, evidence that is disclosed in advance, and oral evidence and argument at the hearings.

As such, the appeal process contemplated by The Cities Act weighs in favour of the conclusion that parties to an assessment appeal have court-like participatory rights (and, consequently, court-like disclosure obligations). On this basis, we readily affirm that procedural fairness in an appeal hearing requires that the parties to assessment appeals must have the opportunity to know the case to be met and to put forward their argument and evidence on the issues raised. [ 48 ] We pause, here, to recognise a point about the relationship between cities and their assessors in the context of assessment appeals.

Under s. 200 of The Cities Act it is clear that the involvement of assessors in appeals of their assessment decisions is distinct from that of cities. It is equally clear that assessors have statutory standing to make filings in assessment appeals before boards of revision. We know that, in practice, boards of revision have granted assessors standing to make separate or joint arguments in defence of appealed assessments (or have acquiesced to that occurring).

Of course, this would not be permissible in the context of judicial review, where administrative decision-makers are generally prohibited from advocate-styled involvement in the reviews of their own decisions or otherwise have restricted standing in such matters (see Ontario (Energy Board) v Ontario Power Generation Inc. , 2015 SCC 44 , [2015] 3

SCR 147). An assessment appeal is not, however, a judicial review ( Affinity at para 57 ). Further, we infer from the relevant legislation that the Legislature intended that assessors (and, at times, assessment appraisers) would appear at appeal hearings “for assessment purposes including defence of value and the provision of information to an assessor” ( The Assessment Management Agency Act , SS 1986, c A-28.1 , s 22(15)).

We are not, in the circumstances of the appeal at hand, prepared to say much more about this dynamic. [ 49 ] However, the fact that assessed persons will face, as an opponent, the municipality collecting the taxes and potentially the assessor fulfilling its role under s. 22(15) tips strongly toward the conclusion that the principles of fairness demand that assessed persons receive full disclosure of the information relevant to their assessments. Both cities and assessors have complete access to the information that underpinned the assessments under appeal.

Given that an assessment is presumptively correct in an appeal, we conclude that the fairness of an appeal hearing would be entirely undercut if cities and assessors were permitted not only to double-team assessed persons but to control the disclosure of information relevant to whether “an error has been made” in the valuation or classification of properties or in the preparation or content of the relevant assessment roll or assessment notice. [ 50 ] Turning back to the statute, we find it instructive in this regard that s. 209 of The Cities Act permits appellants to apply to boards of revision for orders allowing them to amend their notices of appeal after they have received disclosure of the assessors’ materials and those of any other party pursuant to s. 200.

Again, we find it is helpful to appreciate the precise language of the statute in this regard: Amending notice of appeal 209

(1) On application made by an appellant appearing before it, a board of revision may, by order, grant leave to the appellant to amend his or her notice of appeal so as to add a new ground on which it is alleged that error exists.

(2) An order made pursuant to subsection (1) may be made subject to any terms and conditions that the board of revision considers appropriate.

(3) An order made pursuant to subsection (1) must be in writing. [ 51 ] In Affinity , this Court remarked that the phrasing of s. 209(1) confirms that notices of appeal may be amended “ after the parties have disclosed their evidence and after the assessor has filed its assessment field sheet and written explanation of how the assessment was determined” (at para 67, emphasis in original).

To us, this reinforces the inference that the Legislature understood that assessed persons involved in appeals may not have received access to all of the information relevant to their assessments until after assessors and cities have filed their materials pursuant to s. 200. This buttresses our earlier conclusion that, while disclosure at various stages is permitted or expected under The Cities Act , cities and assessors are not statutorily required to disclose the information relevant to assessments, except in accordance with s. 200. [ 52 ] We find support for this

interpretation in the debates and proceedings of the Legislature on the bill that became The Rural Municipality Amendment Act, 1996 , SS 1996, c 58 , which included an amendment to add the equivalent provision to what is now s. 200 of The Cities Act.

In the second reading of that bill, the Honourable Carol Teichrob, Minister of Municipal Government Affairs, advised the Legislature that “Measures for allowing full disclosure of information among parties, while protecting the confidentiality of information are advanced” in the bill (Saskatchewan, Legislative Assembly, Debates and Proceedings ( Hansard ), 23rd Leg, 1st Sess (17 April 1996) at 954; see also Corman Park at para 63). [ 53 ] More relevantly, when the predecessor to s. 200(4) was introduced under The Urban Municipality Amendment Act, 1999 , SS 1999, c 11 , Minister Teichrob remarked: This Bill helps to ensure that the process of completing property assessments is transparent and accessible to the property owner.

Further, it ensures that the property owner is in the know and treated fairly throughout the appeal process . Speaker, I would like now to briefly describe the key provisions of this Bill. … Another amendment proposed in this Bill clarifies that all parties to an appeal have equal duty to file written materials 10 days prior to a board of revision hearing. This includes the Saskatchewan Assessment Management Agency, and the assessor in the case of an urban municipality which completes its own assessments.

In addition, appellants will be assured of receiving assessment field sheets and an explanation of their assessment no later than this time, that is 10 days prior to the appeal. This Bill, Mr. Deputy Speaker, responds to three significant concerns.

One, equitable assessment of similar properties within both municipal and school divisions; secondly, the appeal process regarding appeals of assessment on like properties in multiple jurisdictions and regarding complex commercial or industrial appeals on property; and finally, the accessibility and transparency both of the information and process regarding assessment appeals , helping to make the appeal process easier to use. The provisions enunciated in this Bill, Mr. Deputy Speaker, address all of these concerns.

These provisions ensure that property owners, municipalities, and school divisions receive fair treatment and are part of a transparent and equitable process in order that all may have confidence in the system. (Saskatchewan, Legislative Assembly, Debates and Proceedings (Hansard) , 23rd Leg, 4th Session (25 March 1999) at 258; emphasis added) [ 54 ] Later, in proceedings of the Committee of the Whole when reviewing a companion bill to amend The Assessment Management Agency Amendment Act, 1999 , SS 1999, c 3 , the following exchange occurred (at 590): Mr.

Bjornerud: The lady [a constituent] goes on to say, Madam Minister, that there should be full disclosure of information as to how SAMA arrived at an assessment of property. And I wonder if you would comment on that, Madam Minister, because I think many felt that

how they got to the numbers they got to, the taxpayer out there would like to have understood that and it might have solved some of theproblems that we went through before we went into the appeal process. And a lot of that information, I know for a fact, was not passed onto the taxpayer or the appellant. Hon. Mrs. Teichrob: — Thank you, Mr. Chairman. In answer to that question, we’ll be able to have a fuller discussion if you wish, underthe committee review of The Urban Municipality Act, where

section 253 amended adds this section, that: “

(4) At least 10 days before the date set for the appeal hearing, the assessor shall file with the secretary of the board of revision and servea copy on all parties to the appeal: (

a) a complete assessment field sheet; and (

b) a written explanation of how the assessment was determined.” So we’ve got not only the type of information that must be provided to the appellant but also a time frame of 10 days prior to the hearing,so that the appellant will have sufficient time to make use of that information. Mr. Bjornerud: — Thank you, Madam Minister, I’m glad to hear that because that created a lot of problems for appellants out theretrying to put an appeal together with an understanding of how really SAMA came up with the numbers they did.

The onus… and she goeson to say here, the onus of proof for assessment values has to be on the SAMA agency, not on the property owner. The property ownerdoes not have access to the resources, the time, or the finances. And I wonder if you’d comment on that, Madam Minister. Have weaddressed that in any way? Hon. Mrs. Teichrob: — Mr. Chairman, I think in the member opposite’s previous experience in local government himself, he will knowthat the basis for an appeal... in an appeal application the appellant has to set out the basis for the appeal.

There has to be some basis, therehas to be some comparison with a like property. And so we don’t — we do not plan to incorporate what you’re calling the onus of proofon the other side of the process. (Saskatchewan, Legislative Assembly, Debates and Proceedings (Hansard), 23rd Leg, 4th Sess (15 April 1999) at 590, emphasis added). [55] At this juncture of our analysis, we will briefly step into the Committee Decision to clarify a point of legislative intent.

In itsreasons, the Committee observed that s. 253.2 of The Urban Municipalities Act, 1984, SS 1983-84, c U-11, which contemplated a processakin to civil examinations for discovery (now called questioning), was never proclaimed in force. The Committee concluded from this factthat the Legislature’s intention was to limit the disclosure aspects of the duty of fairness to only those the procedures set out in The CitiesAct.

While we agree that the statute assists in informing the content of the duty of fairness in this regard, we disagree with the idea that,beyond failing to confer this specific kind of discovery right, the Legislature’s failure to proclaim in force s. 253.2 of The UrbanMunicipalities Act, 1984 otherwise informs the content of the duty of fairness owed to assessed persons by assessors or in appeal hearings. [56] As we have found, Hansard confirms that it was the Legislature’s intention that The Cities Act would provide for pre-appealand pre-hearing disclosure by assessors and cities in furtherance of efficiency in the property assessment regime.

Nonetheless, whiledisclosure is statutorily mandated under s. 200 in an assessment appeal, we have concluded that it may occur voluntarily under the statuteat other points in the assessment and assessment appeal processes. [57] We note that this

interpretation is consistent with past decisions of the Committee. In Altus Group Ltd. v Saskatoon (City), 2015SKMB 44 at para 24, the Committee found that The Cities Act did not afford assessors “any sole or exclusive right of access” toconfidential information and that “Information necessary to providing an explanation of how the assessment was determined should bemade available on request” (emphasis added).

In Confed Shopping Centre Inc. v Saskatoon (City), [2011] SMBAACD No 8 (QL), theCommittee ruled that a board of revision’s failure to order disclosure had deprived an assessed person of a fair and open procedure.

InSaskatoon (City Assessor) v Mainstreet Equity Corp., [2011] SMBAACD No 35 (QL) at para 32, the Committee interpreted s. 200(4) ofThe Cities Act as furthering the legislative objective of achieving fair, transparent, understandable and defensible property valuations,which it found required assessors to disclose all of the information relevant to the assessments they had prepared. [58] Returning to core principles in the matter at hand, it is well understood that the right of procedural fairness includes the right tobe heard and the right to know the case to be met. In Charkaoui v.

Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 SCR350, while acknowledging that the right is not absolute, the Supreme Court reinforced the importance of the right to know the case to bemet in an analogous context, i.e., where individuals had limited access to the information that was used in making an administrativedecision about them: [53] Last but not least, a fair hearing requires that the affected person be informed of the case against him or her, and be permitted torespond to that case. This right is well established in immigration law.

The question is whether the procedures “provide an adequateopportunity for [an affected person] to state his case and know the case he has to meet” (Singh, at p. 213). Similarly, in Suresh, the Courtheld that a person facing deportation to torture under s. 53(1)(

b) of the former Immigration Act, R.S.C. 1985, c. I-2, must “[n]ot only… beinformed of the case to be met... [but] also be given an opportunity to challenge the information of the Minister where issues as to itsvalidity arise” (para. 123). [54] Under the IRPA’s certificate scheme, the named person may be deprived of access to some or all of the information put againsthim or her, which would deny the person the ability to know the case to meet.

Without this information, the named person may not be in aposition to contradict errors, identify omissions, challenge the credibility of informants or refute false allegations. This problem is seriousin itself. It also underlies the concerns, discussed above, about the independence and impartiality of the designated judge, and the abilityof the judge to make a decision based on the facts and law. 3. The importance of an assessment decision and an assessment appeal decision to the personsaffected

[ 59 ] Under Baker , the importance of an administrative decision to the persons affected by it helps shape the level of participatory rights engaged under the duty of procedural fairness. The more important the decision, the more stringent the protections that will be required in the interest of fairness. [ 60 ] In that regard, assessment decisions and assessment appeal decisions do not directly engage with an individual’s liberty interests or other Charter -protected rights and freedoms.

They often affect persons who are not individuals and, at bottom, the interests affected are economic, which are not protected by the Charter . This signals that the decisions are of lesser general importance. Of course, some assessed persons are required to pay significant amounts of municipal tax based on the assessed value of their properties; but the statutory scheme requires the achievement of equity in property assessment , not taxation.

On the other hand, the assessment appeal regime is designed to permit the correction of errors in assessments when equity has not been achieved—signalling a statutory emphasis on fairness, of some nature. [ 61 ] Nonetheless, as the decisions made under the assessment regime affect the valuation of property, the importance of an assessment decision or an assessment appeal decision to persons affected by it does not itself call for the level of procedural protections that is most often associated with administrative regimes that affect the Charter -protected rights and freedoms of individuals; nor, however, does this detract from our conclusions, above, about the content of the duties of fairness owed by assessors and boards of revision. 4.

The legitimate expectations of a person challenging an assessment decision and the choice of procedures made by boards of revision [ 62 ] As the last two Baker factors are inter-related to a degree, we will address together the legitimate expectations of a person challenging an assessment decision and the choice of procedures made by boards of revision for assessment appeals. [ 63 ] We observe that boards of revision have broad powers under The Cities Act to compel cities, assessors and assessed persons to abide by their disclosure obligations in the interests of fairness.

First, boards have express powers to compel the attendance of “any person having charge of any books, papers or other documents relating to the matter on appeal” for the purpose of receiving evidence and to issue what was once called a subpoena duces tecum to compel the production of documentary evidence “relating to the matter on appeal” (s. 203.1). Read harmoniously with s. 197(1) (

b) of The Cities Act , the phrase relating to the matter on appeal in s. 203.1 must be taken as referring to allegations of error in the valuation or classification of property or in the preparation or content of the relevant assessment roll or assessment notice.

Therefore, we conclude that boards of revision have the power to compel the production of evidence from assessors, cities, assessed persons, and others. [ 64 ] Moreover, under s. 203.1, boards of revision can specifically compel “the person having charge of the assessment roll” as well as “any person having charge of any books, papers or other documents relating to the matter on appeal” to attend appeal hearings (s. 203.1(a)).

When such persons’ attendance is compelled, they are required to “produce the assessment roll and all books, papers and other documents in his or her custody relating to the matter on appeal” (s. 203.1(b)). We find these are powers granted to boards of revision specifically to compel the production of assessment information by assessors and cities for the purposes of an assessment appeal hearing.

We further observe that boards of revision have the general powers, exercisable at the request of a party to an appeal, to issue subpoenas and summonses to compel the giving of evidence by “any person” and the production by any such person of “documents and things that relate to the matters at issue in the appeal” (s. 205(2)).

Where subpoenaed or summonsed, a person may not “without just excuse” fail to attend or refuse to testify or produce documents (s. 205(6)). [ 65 ] As the Baker decision states, the powers afforded to boards of revision and their choices as to the procedures they adopt inform the content of the duty of procedural fairness. These factors also affect the procedural fairness expectations of the persons who are subject to the decision-making in question.

In that regard, the Regina BOR adopted procedures or made statements regarding the achievement of procedural fairness in its hearings that reinforce our conclusions on the disclosure obligations of assessors and cities and the content of the duty of fairness owed by boards of revision, including: NATURAL JUSTICE AND PROCEDURAL FAIRNESS Natural justice means that the law requires all parties be given a fair hearing.

A FAIR HEARING TAKES PLACE WHERE: The parties to the hearing have had proper notice of the hearing. • All parties know the case made against them and are given a fair chance to present their case. • All parties are given the opportunity to dispute, correct, or contradict any evidence, which is prejudicial to their position. • All parties present arguments and evidence to fully support their case. • The adjudicator who hears the case decides the case free from bias. [ 66 ] In our assessment of this Baker factor, the statutory powers of boards of revision and the procedural choices of the Regina BOR confirm that assessed persons would legitimately expect to have received full disclosure of the information relevant to their assessments prior to hearings before boards of revision and, where that obligation has not been met, to have boards of revision consider any allegations of deficiencies and, if established, to address them through the exercise of their statutory powers. 5.

Summary [ 67 ] The Baker factors confirm that assessors do not have a general obligation to disclose assessment information to assessed persons as part of the assessors’ duty of fairness. However, assessors are statutorily obliged to disclose to assessed persons all of the

information that is relevant to their assessments when those assessments are appealed. While disclosure may occur outside an assessmentappeal, the obligation of assessors to disclose arises only under, and must be fulfilled in accordance with, s. 200 of The Cities Act.

In theiradjudicative role, boards of revision have a duty to ensure that assessors, cities and assessed persons have complied with s. 200 and theymay exercise their powers to ensure that that occurs in advance of a hearing in the interests of procedural fairness. [68] In the instant context, which involves a presumption of correctness and a review for error on the record, we conclude that thenotion of a “fair hearing” before boards of revision is achieved where assessed persons, whether appellants or respondents, are fullyinformed of the factual and legal basis of the assessments under appeal so that they may state their case for establishing or dispellingallegations of error.

Without full disclosure of the relevant evidence and the basis in assessment law and practice for assessments, assessedpersons will not be in a position to identify or dispel allegations of errors of fact, principle or in the application of assessment law andpractice to the facts. [69] Moreover, procedural fairness requires that such full disclosure of the relevant information occur in accordance with thetimelines established under s. 200 of The Cities Act.

If a statute imposes time constraints on the satisfaction of disclosure obligations, thoseobligations must be met in a timely manner so as not to thwart the right to a fair hearing, i.e., so as not to undermine the right to beinformed of the case to be met and to respond to it. [70] Looking back to the broader nature of the statutory scheme in this case, this Court has held that the Legislature intended toestablish a regime of property assessment and taxation such that property values would be assessed and property taxes would becalculated, made known and paid within a year.

Within that timeframe, the Legislature made a restricted and time-limited right of appealavailable to assessed persons and to cities, among others. Appellants must identify specific errors in their notices of appeal. Appellantsmust state in their notices of appeal whether they have had discussions with the opposite side about issues they have with assessments. Thestatute expects assessed persons and cities to attempt to resolve their disputes in advance of and outside of appeal hearings.

If mattersproceed, boards of revision must conduct timely adjudication of numerous assessment appeals. (See, generally, Corman Park).

All ofwhich drives us to conclude that the statutory scheme, the objects of The Cities Act and legislative intent support prompt and fulldisclosure by assessors. [71] To encapsulate our conclusions in terms of procedural rights, assessed persons, whether appellants or respondents to an appeal,have a right to be fully and promptly informed of the factual and legal basis of the assessments under appeal so that they may state theircase for establishing or dispelling error in those assessments. C.

What is the Committee’s jurisdiction to address issues of proceduralfairness and what standard of review should it apply? [72] The second question in this appeal concerns the Committee’s jurisdiction to address allegations of a denial of proceduralfairness occurring in proceedings before a board of revision.

As we explain, this Court has previously found that the Committee has thatjurisdiction and that it should apply the correctness standard when it considers such questions. [73] In traditional terms, a breach of procedural fairness by an administrative body is considered an excess of jurisdiction, i.e., thedecision-maker in question has exceeded its jurisdiction by failing to act fairly (Cardinal at para 23).

Where an administrative decision-maker exceeds its jurisdiction by failing to fairly adjudicate the matter before it, the resulting decision is void ab initio (NewfoundlandTelephone Co. v Newfoundland (Board of Commissioners of Public Utilities), (SCC), [1992] 1 SCR 623 at paras 40-42;Dunsmuir v New Brunswick, 2008 SCC 9 at para 108, [2008] 1 SCR 190 [Dunsmuir]).

In judicial review proceedings, courts usuallyremedy such failures by compelling the administrative body to remake the decision at issue under a fair process, which may or may notinvolve the same decision-maker (South East Cornerstone School Division No. 209 v Oberg, 2021 SKCA 28 at paras 139–140, 457 DLR(4th) 224; Dunsmuir at para 108; Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 142, [2019] 4 SCR653). [74] This Court has held that the Committee fulfills a traditional appellate role in the statutory assessment appeal regime; one wherethe Committee reviews board of revision decisions for error on the record (City Centre Equities Inc. v Regina (City), 2018 SKCA 43 atpara 97, 441 DLR (4th) 1; Marose Investments Ltd. v Regina (City), 2009 SKCA 20 at para 15, 308 DLR (4th) 548).

In carrying out thatrole, the Committee has the authority to hear and determine “any question of law or fact as to matters within its jurisdiction” (The CitiesAct, s. 224, and The Municipal Board Act, SS 1988-89, c M-23.2, ss 15(1) and 20(1)).

In Affinity, this Court remarked that theCommittee’s jurisdiction extends to addressing concerns that a board of revision has breached its duty of fairness and instructed theCommittee to address those issues on the standard of correctness: [115] The Committee will review questions of jurisdiction on the standard of correctness. [116] We include questions of jurisdiction for the sake of completeness, recognising that such questions should rarely arise in appeals tothe Committee.

Nevertheless, under the MBA, the Legislature granted this Court judicial oversight on questions of law and jurisdictionarising from decisions of the SMB (MBA, s. 33.1). For this Court to effectively exercise its supervisory function, the Committee itself mustbe empowered to review for correctness all questions of jurisdiction arising in an appeal from the decision of a board of revision (E.Z.Automotive at para 94). [117] A board of revision has jurisdiction over an issue only to the extent granted by the Legislature.

In an appeal to the Committee, aground of appeal will give rise to a question of jurisdiction where an appellant asserts that a board of revision has omitted, neglected orrefused to hear or decide an appeal or an issue raised in an appeal. The Committee’s regulatorily-mandated expertise and its supervisoryrole over boards of revision support the conclusion that the Legislature intended the Committee to also intervene whenever it determinesthat a board has exceeded its jurisdiction by breaching the principles of natural justice.

To be clear, however, questions of jurisdiction inthis sense do not include issues as to the correct

interpretation of a statutory instrument, which give rise to questions of law. [75] In terms of remedy, unlike a court, the Committee lacks the authority to remit a matter for rehearing before a board of revision(see The Cities Act, s. 226(1); Saskatoon (City) v Wal-Mart Canada Corp., 2019 SKCA 3 at para 63, 430 DLR (4th) 697 [Wal-Mart

2019 ]). The Cities Act only mentions the Committee’s power to remit matters to assessors ( s. 226(1) (c)). [ 76 ] On the other hand, the Committee has before it the full record of the board of revision proceedings ( The Cities Act , s. 220 ) and it has the authority to supplement that record in limited circumstances ( s. 223 ), which should allow the Committee to directly address any procedural fairness issues arising in assessment appeals.

This is the approach this Court identified in Wal-Mart 2019 , when ruling that the powers afforded to the Committee under The Cities Act and the MBA provided an adequate alternative remedy on issues of procedural fairness: [65] What matters instead is whether the Committee, upon an appeal from a final decision of the Board on the merits, would be able to address Wal-Mart’s grievance. The Committee is empowered by s. 20(1) of The Municipal Board Act to hear and determine any question of law; this power would include the ability to hear and determine issues of procedural fairness, when raised on appeal.

From this, lack of procedural fairness would be a ground of appeal from the Board’s decision upon which Wal-Mart could appeal to the Committee. [66] The lack of disclosure complained of by Wal-Mart is, of course, an issue that affects the record that was before the Board and would then be before the Committee pursuant to s. 220 of The Cities Act . Given that appeals to the Committee are determined on the record and the Committee’s traditional appellate role, a cursory review suggests the Committee would, therefore, not be able to provide Wal-Mart with a remedy and that there is a gap in the Committee’s authority.

But the Legislature has crafted an exception that allows new evidence to be called on appeals. [67] This exception, contained in s. 223 of The Cities Act , set out above, allows new evidence to be called in three different circumstances. Subsection 223(1)(

c) permits the Committee to allow new evidence to be called on appeal if it is satisfied that “the person seeking to call the new evidence has established that relevant information has come to the person’s attention and that the information was not obtainable or discoverable by the person through the exercise of due diligence at the time of the board of revision hearing” (emphasis added).

In such circumstances, the Committee is then authorized to use its powers under The Municipal Board Act to “seek and obtain further information” (s. 223(2)). [68] In my view, this exception, paired with the Committee’s authority under s. 20(2) of The Municipal Board Act , would enable the Committee to consider and, if necessary, address Wal-Mart’s disclosure grievance in an appeal. If the Committee’s ruling was not favourable to Wal-Mart, then it could seek leave to appeal to this Court.

While this remedy is not identical to the one that could be provided by the Court of Queen’s Bench, it is adequate to address Wal-Mart’s grievance. As it is not necessary to resolve this appeal, I make no comment on the ability of the Committee to hear interim appeals or to address such an issue at an interim stage. [ 77 ] In short, this Court has interpreted The Cities Act and The Municipal Board Act such that: (

a) the Committee has the jurisdiction to consider issues of procedural fairness arising from proceedings before boards of revision; (

b) the Committee should review allegations of a denial of procedural fairness by boards of revision on the standard of correctness; and (

c) where the Committee concludes that breaches of procedural fairness have occurred, it must conduct de novo reviews of assessments on the record of the proceedings taken before boards of revision, as may be supplemented in accordance with s. 223 of The Cities Act . D. Did the Committee misconstrue or exceed its jurisdiction in the circumstances of this assessment appeal? [ 78 ] We agree that, in upholding the BOR Decision , the Committee erred in law and exceeded its jurisdiction by failing to address the denials of procedural fairness alleged by Southland in its notice of appeal to the Committee.

Those allegations involved claims that the hearing before the Regina BOR was procedurally unfair by reason of the Assessor’s late disclosure of CRU data relevant to the issues in that appeal and that the Regina BOR’s remedy for that alleged unfairness—an overnight adjournment—was itself a breach of procedural fairness in the circumstances. [ 79 ] Without delving into the detail of it, we find that the Committee failed to squarely address these allegations of unfairness.

We conclude that the Committee Decision is void ab initio by reason of a failure to exercise jurisdiction. [ 80 ] Given that Southland has requested relief that is consistent with the jurisprudence, we remit the allegations of a denial of procedural fairness in Southland’s notice of appeal to the Committee for disposition in accordance with the law set forth in this judgment. IV. DISPOSITION OF THE APPEAL [ 81 ] The appeal is allowed. The Committee Decision is declared void ab initio . The matter is remitted to the Committee.

Southland shall have its costs in this appeal and in its leave application, calculated in the usual way. “Caldwell J.A.” Caldwell J.A. “Whitmore J.A.” Whitmore J.A. “Leurer J.A.” Leurer J.A.