Western Eagle Lodge Management General Partners Inc. v. Pfeiffer Holdings Ltd. o/a Tropical Inn (as, 2022 SKCA 53

Court of Appeal for Saskatchewan Docket: CACV3535 Citation: Western Eagle Lodge Management General Partners Inc. v North Battleford (City) , 2022 SKCA 53 Date: 2022-05-04 Between: Western Eagle Lodge Management General Partners Inc. and Pfeiffer Holdings Ltd. o/a Tropical Inn (as represented by Altus Group Limited) Appellants (Respondents) And City of North Battleford (as represented by the Saskatchewan Assessment Management Agency) Respondent (Appellant) Before: Jackson, Ryan-Froslie and Tholl JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Mr.

Justice Tholl In concurrence: The Honourable Madam Justice Jackson The Honourable Madam Justice Ryan-Froslie On appeal from: 2019 SKMB 113 , Regina Appeal heard: March 9, 2022 Counsel: Samuel Edmondson for the Appellants Troy Baril for the Respondent Tholl J.A. I. INTRODUCTION [ 1 ] This appeal relates to the 2018 property tax assessments for two hotels located in the City of North Battleford.

In both cases, the property owners were successful in their appeals to the North Battleford Board of Revision [Board] but unsuccessful when those decisions were appealed to the Assessment Appeals Committee of the Saskatchewan Municipal Board [Committee]. At the first level of appeal, the Board found that the assessor erred by choosing to use the cost approach, as opposed to the income approach, for assessing the properties. On further appeal, the Committee overturned those decisions, based on its

interpretation of the Board’s decisions and the Committee’s application of s. 165(3.1) of The Cities Act , SS 2002, c C-11.1 . In the Committee’s view, s. 165(3.1) required there to be a change in the “facts, conditions and circumstances affecting the property” before a change could be made in the assessments. [ 2 ] The appellants applied to this Court, pursuant to s. 33.1 of The Municipal Board Act , SS 1988-89, c M-23.2 , for leave to appeal from the decision of the Committee. On November 17, 2020, Richards C.J.S. granted leave to appeal on the following single question of law: “Did the Committee err in its

interpretation of s. 165(3.1) of The Cities Act , SS 2002, c C-11.1 ?” ( Western Eagle Lodge Management General Partner Inc. v North Battleford (City) (17 November 2020) Regina, CACV3535 (Sask CA) at para 3). The leave application was the counterpart to the one brought and granted on the same basis in Terracap Investments (Frontier) Inc. v North Battleford (City ), 2020 SKCA 130 . [ 3 ] For the reasons that follow, I find that the Committee erred in its

interpretation of s. 165(3.1) of The Cities Act and the appeal must be allowed. II. BACKGROUND A. Relevant sections of The Cities Act [ 4 ] The relevant portions of The Cities Act are as follows: Preparing annual assessments 165

(1) An assessment shall be prepared for each property in the city using only mass appraisal.

(2) All property is to be assessed as of the applicable base date.

(3) The dominant and controlling factor in the assessment of property is equity.

(3.1) Each assessment must reflect the facts, conditions and circumstances affecting the property as at January 1 of each year as if those facts, conditions and circumstances existed on the applicable base date. …

(5) Equity in non-regulated property assessments is achieved by applying the market valuation standard so that the assessments bear a fair

and just proportion to the market value of similar properties as of the applicable base date. … Division 6 Appeals to Board of Revision Appeal procedure 197

(1) An appeal of an assessment may only be taken by a person who: (

a) has an interest in any property affected by the valuation or classification of any property; and (

b) believes 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. …

(5) The appellant shall file a separate notice of appeal for each assessment being appealed.

(6) A notice of appeal must be in writing in the form prescribed in regulations made by the minister and must: (

a) set out the specific grounds on which it is alleged that an error exists … . [ 5 ] The applicable base date, as referenced in s. 165(2) and s. 165(3.1), for both the 2017 and the 2018 assessment years, was January 1, 2015. B. The properties [ 6 ] Western Eagle Lodge Management General Partners Inc. [Western Eagle] owns a hotel in North Battleford known as the Gold Eagle Lodge. Pfeiffer Holdings Ltd. [Pfeiffer] owns a hotel in the same city, which operates under the name of the Tropical Inn. Both hotels are unregulated properties within the meaning of The Cities Act .

C. 2017 decisions [ 7 ] The appellants had previously appealed their 2017 assessments. The Committee decisions for the properties for 2017 are not under appeal, but have relevance to the matter at hand. [ 8 ] For the 2017 assessment year, North Battleford used an individual as its assessor.

Both the Market Value Assessment in Saskatchewan Handbook , ver 3 (Regina: Saskatchewan Assessment Management Agency, 2012) at c C.11 Hotel/Motel [ MVA Handbook ], and the SAMA 2015 Base Year: Income Approach Market Report – Accommodations (Regina: SAMA Assessment Services Division) [ Market Report ] , recommended that hotels be valued using the income approach. Despite this guidance, the assessor used the cost approach to value the two properties in 2017. He then applied a local market adjustment factor to arrive at the 2017 assessment.

The assessor used the cost approach because there was insufficient data available to use the income approach. [ 9 ] The 2017 assessments were appealed to the Board, which upheld the assessor’s use of the cost approach to valuation, but allowed the appeals in part on other grounds. In Western Eagle Lodge v North Battleford (City) (7 December 2017) North Battleford (City), 2017-C012 (Board of Revision), the Board concluded, in part, as follows: [26] The Board finds many compelling arguments have been made by the Appellant, and is supportive of the Income Approach suggested by the Appellant.

Unfortunately, there is no data available such that this approach can be used. The “provincial model” referenced by the Appellant requires the use of a local Capitalization (CAP) Rate that is developed in each specific city where this model is used. There is no data available to establish a CAP rate for the City of North Battleford, and therefore it would be impossible to apply a model similar to that used by the Cities of Estevan, Yorkton, Weyburn, etc. to the City of North Battleford. [ 10 ] The appellants’ appeals of the Board’s 2017 decisions to the Committee were resolved by consent.

That resolution resulted in a joint recommendation that was presented to the Committee based on an agreed change to the market adjustment factor. The Committee accepted the joint recommendation and confirmed the new lower assessed value for the properties. As a consequence, the assessments for the hotels owned by Western Eagle and Pfeiffer were adjusted downward. The resolution reached did not change the cost approach used by the assessor. D. 2018 Board decision [ 11 ] Commencing with the 2018 assessment year, North Battleford changed assessors.

It began using the Saskatchewan Assessment Management Agency [SAMA] as its assessor. SAMA represented North Battleford in this appeal. [ 12 ] For the 2018 assessment year, SAMA continued to use the cost approach to value the two properties. Once again, the property owners appealed their assessments to the Board and contended that the income approach should have been used. They also appealed the 2018 assessments on the basis of the market adjustment factor, but the consent resolution regarding the 2017 assessments addressed that issue.

As a result, the only substantive issue in front of the Board was whether the cost approach or the income approach should be

applied. Western Eagle continued as the lead appellant. [ 13 ] The Board found that the assessment was in error because the income approach should be used to value the properties: Gold Eagle Lodge v North Battleford (City) (27 August 2018) North Battleford, File No 2018-A030 (Board of Revision) [ 2018 Board Decision ]). The heart of its reasoning is reflected in the following excerpts: [15] The Appellant presented virtually identical arguments to this Board during appeals heard in 2017 … .

This included the Appellant’s request that the subject property be assessed using the Income approach based on the SAMA provincial hotel Income model shown as Exhibit B-1, rather than the Cost approach. … [23] During the 2017 appeals related to this property, the Board accepted the [assessor’s] arguments that he was unable to access the data used by SAMA to establish the value of hotels using the Income Approach as a result of the confidential nature of the data.

The Board recognizes that SAMA has refused to release confidential information in past, despite Board orders to do so, and therefore accepted that SAMA refused the previous Appraiser with access to this data. [24] On the surface, this appeal may seem identical to the appeal from 2017, however, there is a single and critical difference. SAMA is now the appraiser for the City of North Battleford.

They have full access to all of the data used to develop the provincial model used to generate the assessed value of similar hotel properties in other, mostly similar, cities based on the Income approach. [25] If the previous Appraiser did, in fact, have access to the data used by SAMA to develop the Provincial model using the Income approach, the Board could potentially have supported the Appellant in their 2017 appeal.

However, the Board accepts this was not the case for the appeal heard in 2017. … … [27] There can be little doubt that properties such as this are investment properties which trade on the market based on their ability to generate revenue.

SAMA appears to also believe in this principle since they acknowledge that the use of the Income approach is the most accurate method to establish the assessed value of investment/rental properties in their handbook. [28] This appears to affirm that the Income method is the most appropriate method to value accommodation properties in order to achieve the Market Value Standard (MVS).

Since this method is used in all mid-sized cities within SAMA’s jurisdiction, and since SAMA has access to all data used to develop the model used and applied to other similar properties in these cities, there would appear to be no reason why they could not do so with the subject property. [29] SAMA indicates they do not have specific and detailed income returns specific to accommodation properties in North Battleford. Yet the Board is aware the same is also true for other cities within SAMA’s jurisdiction. However, SAMA has used the Income method in these cities, despite the lack of specific information.

In the result, and because they use a provincial model in other cities where there is a lack of specific information, there should be no reason why that model is not applied in the City of North Battleford. Surely if SAMA believes they can apply this model to the City of Martensville or the City of Warman, it could easily be applied with very little effort to the City of North Battleford. [30] The Board rejects the notion that, because the appeal was dismissed last year it should therefore be dismissed this year.

Circumstances have changed and both the Board as well as the Appraiser must be adaptive to these changes. … [31] In the result, this appeal is allowed. The subject property shall be assessed using the Income approach applying the provincial model established by the appraising agency. E. 2018 Committee decision [ 14 ] North Battleford appealed the 2018 Board Decision to the Committee.

The Committee framed the issue before it as, “Did the Board make a mistake by reversing its decision from 2017 and ordering the 2018 assessed value [be] determined by application of the Income Approach?” ( North Battleford (City) v Various (Altus) , 2019 SKMB 113 at para 9 [ 2018 Committee Decision ]). Its conclusions regarding this question are captured in the following portions of its decision: [49] We confirmed earlier in this decision, we agree with SAMA when it suggested no “provincial model” existed that was reflective of the market in the City.

Therefore, the only “circumstance” that changed was the Assessor for 2017 (the first year of the current revaluation cycle – see SAMA Board Order issued December 2013 pursuant to subsection 12(1) of [ The Assessment Management Agency Act , SS 1986, c A-28.1 [ AMAA ]] was now on the 2018 Board panel and SAMA was the assessment service provider. [50] The [Cities] Act states as follows at subsection 165(3.1) : “Each assessment must reflect the facts, conditions and circumstances affecting the property as at January 1 of each year as if those facts, conditions and circumstances existed on the applicable base date”. [51] We do not believe a change in Assessor from 2017 to 2018 is a fact, condition or circumstance the Act contemplates in this subsection.

We believe the legislature, and SAMA in its roll afforded by

section 12 of the AMAA , intends to reference the physical factors and characteristics affecting the property. Examples of physical facts and conditions might be that a property’s primary use has changed, the improvements have been significantly renovated, the parking associated with the property has been expanded, and so on. The facts, conditions and circumstances referred to in the legislation may extend to economic obsolescence, as well; that is, physical factors and characteristics external to the property.

An example of external obsolescence might be construction on the road running past the property for an extended period of time that negatively affected its value. [52] Two mistakes in the Board analysis and Altus’ argument are exposed. First, we find a change in the assessment service provider is not a change in “facts, conditions and circumstances affecting the property …” as contemplated by the Act . This finding is backed by City

Centre Equities Inc. v Regina (City), 2019 SKCA 80, where the Court stated at paragraph [47]: … I am satisfied that the phrase ‘facts, conditions and circumstances’ as used in South Hill [2017 SKCA 52] in reference to s. 227 has thesame meaning as in s. 165(3.1).

The implication of this is that the phrase refers to aspects or characteristics of the property itself andfactors such as use, location and zoning of the land and improvements as was in the past set out in the Assessment Manual pursuant to TheAssessment Management Agency Act. … [53] Second, the Board failed to adequately consider it was open to the Assessor to use the Cost Approach for Retail properties within ajurisdiction. While the Income Approach may be recommended for use for Retail and income-producing properties, it is not a mistake bythe Assessor to choose the Cost Approach in this instance.

SAMA’s evidence to the Board was SAMA assumed the role (and theassessment roll) on January 1, 2018, and there was no change to facts, conditions and circumstances affecting the property. Given nosubstantive change to the evidence before it, the Board ought to have carried forward its decision from 2017 to 2018 to uphold the CostApproach. In addition, we confirmed an agreement between the parties for one of the subject properties in the Gold Eagle Lodge 2017decision that employed the Cost Approach and satisfied all aspects of the 2017 appeal before the Board. (Emphasis in original) III.

ISSUES [15] The issues in this matter are as follows: (

a) Did the Committee err in its

interpretation of s. 165(3.1) of The Cities Act? (

b) If the Committee erred, what is the appropriate remedy? IV. ANALYSIS A.

Interpretation of s. 165(3.1) of The Cities Act 1. Standard of review [16] As set out in s. 33.1 of The Municipal Board Act, leave to appeal may only be granted on questions of law. As a result, thestandard of review in this Court is correctness: Consumers Cooperative Refineries Limited v Regina (City), 2020 SKCA 111 at para 40,and Gary L. Redhead Holdings Ltd. v Swift Current, 2017 SKCA 47 at para 88, 415 DLR (4th) 218. [17] It is also instructive to remind ourselves of the standard of review that was to be applied by the Committee when it reviewedthe Board’s decision.

This is set out in Saskatoon (City) v Victory Majors Investment Corporation, 2020 SKCA 59, as follows: [97] The law is clear. The function of the Committee is to review the Board’s decision for a material error of fact, law or of assessmentprinciples and practices, not to rehear the case and determine whether the assessor erred: Sasco [2012 SKCA 24] at para 41 and ImperialOil [2016 SKCA 107] at para 30. The Committee does not have free rein to decide the matter afresh or to opine on how it would havedeveloped the rent model.

Furthermore, an appellate body may not intervene and overturn an assessor’s discretion merely because itconsiders “other factors more relevant, or other properties more comparable, than those determined by the assessor” (Alberta Inc. [2010SKCA 136] at para 24). Simply put, absent a finding of material error on the part of the Board, the Board’s decision must be sustained:Imperial Oil at para 50–52, Sasco at para 41, and Laing [(1994), (SK CA), 128 Sask R 29] at paras 29–30. 2. Principles of statutory

interpretation [18]

Section 2-10(1) of The Legislation Act, SS 2019, c L-10.2, requires that a court read the words of any provisions beinginterpreted “in their entire context, and in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of theAct and the intention of the Legislature”. Every enactment must be construed as being remedial and be given “the fair, large and liberalinterpretation that best ensures the attainment of its objects” (s. 2-10(2)). This reflects the modern approach to statutory

interpretation. [19] Statutory

interpretation is not based on the wording of an implicated

section alone. While a court must examine the ordinarymeaning of the words and phrases in question, it is required to do so using a contextual and purposive approach. These principles are setout in the following: Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 SCR 27; Re: Sound v Motion Picture TheatreAssociations of Canada, 2012 SCC 38, [2012] 2 SCR 376 at paras 32–33; Hess v Thomas Estate, 2019 SKCA 26 at paras 50–51, 433DLR (4th) 60; Regina Bypass Design Builders v Supreme Steel LP, 2021 SKCA 82 at paras 23–28; and Altus Group Limited v Estevan(City), 2021 SKCA 101 at paras 34–36. 3.

Interpretation of s. 165(3.1) of The Cities Act [20] The appellants submit the Committee erred by finding that there had been no change to the facts, conditions and circumstancesaffecting the property from 2017 to 2018, as referenced in s. 165(3.1) of The Cities Act, and by concluding its appeal to the Board in 2018should have been dismissed on that basis. They assert that the Committee erred in its

interpretation of s. 165(3.1) by determining that thesection precludes a property owner from appealing an assessment in a subsequent year if they have been unsuccessful in the previousyear’s appeal – even if they present new evidence and new arguments – unless physical aspects related to the property itself have changed. [21] SAMA argues that a change in the assessor from one year to the next cannot be considered a change in the facts, conditions andcircumstances affecting the property as set out in s. 165(3.1) of The Cities Act. It contends that phrase refers to physical changes affecting

the property – such as the hotel pool being out of service, an access road being moved, and things of that nature – not to a change in a tangential factual circumstance such as the replacement of the assessor. SAMA acknowledges that a property owner is entitled to bring a new appeal each assessment year, but argues that an owner can only do so on the basis of new evidence or a new argument.

It contends that the appellants did not do so in this case and, with the exception of noting that a new assessor had been appointed, merely recycled its case from 2017. [ 22 ] It does not appear that s. 165(3.1) of The Cities Act was relied upon by any party to the appeal at the Board level with regard to the assertion that the valuation method should remain or be changed. It is not mentioned in the 2018 Board Decision and seems to have appeared for the first time in the Committee’s decision. The appellants did not assert, and Board did not rely upon, a change in the physical attributes of the property.

Instead, in allowing the appeal, the Board concluded that previously unavailable data was now available. [ 23 ] As a starting point, I find that the Committee was correct in determining that the phrase facts, conditions and circumstances affecting the property , as set out in s. 165(3.1) of The Cities Act , refers to factors, aspects or characteristics related to the actual property, which affect its value. The purpose of this

section is to facilitate the use of an assessment cycle and create a presumption that the present features of a property existed as of the applicable base date. To assure the objective of maintaining equity in assessments, s. 165(3.1) of The Cities Act also permits modification of an assessment when there is a change, positive or negative, in the attributes of a property from one year to the next. In my view, the language of the phrase in question is clear and unambiguous.

All three descriptors – facts, conditions and circumstances – refer directly to matters affecting the nature of the property and, consequently, its value. Such factors could include, for example, improvements, a shift in use, or changes to an access road. This properly fits with the purpose of the

section and the overall assessment scheme set out in The Cities Act . [ 24 ] This

interpretation of s. 165(3.1) of The Cities Act also accords with this Court’s discussion regarding the same phrase in City Centre Equities Inc. v Regina (City) , 2019 SKCA 80 , 91 MPLR (5th) 1, where Ottenbreit J.A. opined as follows: [47] Having found that s. 227 exists to facilitate the assessment process, I am satisfied that the phrase “facts, conditions and circumstances” as used in South Hill [2017 SKCA 52] in reference to s. 227 has the same meaning as in s. 165(3.1) .

The implication of this is that the phrase refers to aspects or characteristics of the property itself and factors such as use, location and zoning of the land and improvements as was in the past set out in the Assessment Manual pursuant to The Assessment Management Agency Act.

I pause to note that the Assessment Manual no longer has the force of law under s. 165, but the assessment principles and practice as laid down in the Manual are still relevant in determining the propriety of assessments ( Imperial Oil Limited v Regina (City) , 2016 SKCA 107 at para 50 , 408 DLR (4th) 46). [ 25 ] Despite my finding that the Committee was correct in its

interpretation of the phrase in question, it is my view that it erred by further interpreting s. 165(3.1) of The Cities Act in a manner that would, by implication, require a change in the aspects or characteristics of a property itself before a property owner could successfully appeal an assessment, if they had not successfully appealed the previous year.

There are many reasons why an appeal in subsequent years would not depend solely on physical changes: for example, the property owner may have declined to appeal in an earlier year because of resource constraints; evidence that was not marshalled in a prior year might be available to be assembled for the next year; a property owner may discover calculation mistakes or other fundamental errors that it did not notice in the previous year; or the assessor might change the model and introduce new errors.

This is not an exhaustive list and is presented simply for the purposes of illustrating situations where a failure to successfully appeal in the prior year would not preclude any subsequent appeal simply because there had been no changes to the property. [ 26 ] The proposition that an appeal can be brought on a wider basis than changes to the property from year-to-year is supported by this Court’s decision in South Hill Mall Property Holdings Inc. v Prince Albert (City) , 2017 SKCA 52 .

In South Hill , Ryan-Froslie J.A. stated the following with regard to assessments and appeals that may be brought over an assessment cycle: [19] The [Cities] Act requires that annual assessments of property be prepared and, in accordance with s. 165(3.1), “each assessment must reflect the facts, conditions and circumstances affecting the property as at January 1 of each year as if those facts, conditions and circumstances existed on the applicable base date”. “Base date” is defined in s. 163 of the Act to mean the date for determining property values for the assessment roll.

Base dates are established for an assessment cycle, which is generally four years. A property assessment will usually be the same for each of those four years unless the “facts, conditions and circumstances affecting the property” change, an assessment appeal requires a change or the assessor alters the assessment model . (Emphasis added) [ 27 ] A party is not limited to appealing from year-to-year within an assessment cycle solely on the basis that there have been changes to the property that fit within s. 165(3.1) of The Cities Act .

To the extent that the 2018 Committee Decision can be read as saying otherwise, it represents an error of law. While this may not have been the intent of the Committee in focusing on s. 165(3.1) in the manner in which it did, it was the effect of its ruling. [ 28 ] Here, the appeals to the Board were brought under s. 197 of The Cities Act and did not rely on any change to the physical aspects or characteristics of the property under s. 165(3.1) . The appellants also did not simply rely on the fact that the assessor had changed.

They argued, as they had in 2017, that the income approach should have been used for the assessment of the properties, not the cost approach. While this was the same general argument that they had made in 2017, it relied on one key difference. That distinction consisted of the appellants’ assertion that the change in assessor had resulted in the availability of the data that was required to use the income approach. If that data were available, the MVA Handbook and the Market Report both recommended the use of that approach.

They asserted that the failure to use this now purportedly available data and switch to the income approach was an error. This argument did not rely on any changes to the properties and did not rely on a change in personnel in the assessment role. Its foundation was the supposed availability of the data that, in the appellants’ submissions, would permit the appropriate approach to valuation to be used.

Without commenting on the merits of that argument, this was clearly a permissible basis upon which to appeal to the Board. [ 29 ] The Committee got off track by focussing its analysis on the question of whether a change in the assessor represented a change as set out in s. 165(3.1) of The Cities Act. In doing so, it erred by finding that s. 165(3.1) was a full answer to the appeal in front of it.

B. Remedy [ 30 ] The appellants submit this Court should set aside the 2018 Committee Decision and restore the Board’s decision. In my view, the matter should be remitted to the Committee. I find this is the appropriate remedy because of conflicting statements in the two decisions that may affect the remedy that could be granted. In the 2018 Board Decision , the Board stated the following: [24] … SAMA is now the appraiser for the City of North Battleford.

They have full access to all of the data used to develop the provincial model used to generate the assessed value of similar hotel properties in other, mostly similar, cities based on the Income approach. [25] If the previous Appraiser did, in fact, have access to the data used by SAMA to develop the Provincial model using the Income approach, the Board could potentially have supported the Appellant in their 2017 appeal. … … [28] This appears to affirm that the Income method is the most appropriate method to value accommodation properties in order to achieve the Market Value Standard (MVS).

Since this method is used in all mid-sized cities within SAMA’s jurisdiction, and since SAMA has access to all data used to develop the model used and applied to other similar properties in these cities, there would appear to be no reason why they could not do so with the subject property . [29] … In the result, and because they use a provincial model in other cities where there is a lack of specific information, there should be no reason why that model is not applied in the City of North Battleford . … [ 31 ] In the result, this appeal is allowed.

The subject property shall be assessed using the Income approach applying the provincial model established by the appraising agency. (Emphasis added) [31] Conversely, the Committee stated the following in its decision: [36] SAMA also argued the Board’s 2018 decision again referenced a “provincial model”, which SAMA claimed did not exist . According to SAMA, there was no evidence in either 2017 or 2018 that showed hotels in the City were comparable to other hotels in the province or the market in other municipal jurisdictions was substantially similar. [37] For the most part, we agree with SAMA’s positions .

We found discussion on the record that markets in other small cities and non- similar jurisdictions may have a degree of similarity to the City’s market. However, we do not see the argument and suggestion Altus provided the Board (in either year’s appeal) has the evidentiary basis to overturn the assessed values produced when applying the Cost Approach. … [49] We confirmed earlier in this decision, we agree with SAMA when it suggested no “provincial model” existed that was reflective of the market in the City .

Therefore, the only “circumstance” that changed was the Assessor for 2017 (the first year of the current revaluation cycle – see SAMA Board Order issued December 2013 pursuant to subsection 12(1) of [ The Assessment Management Agency Act ]) was now on the 2018 Board panel and SAMA was the assessment service provider. (Emphasis added) [ 32 ] Given the emphasized contradictions, the narrow question of law upon which this Court has opined, and the potential problems that might arise if this Court simply reinstated the Board’s decision, in light of the Committee’s statements, I find that the best course is to refer the matter back to the Committee to address.

V. CONCLUSION [ 33 ] The appeal is allowed. The 2018 Committee Decision is set aside and the matter is remitted to the Committee. The appellants shall have one set of costs for this appeal, plus one set of costs for the application for leave to appeal, both calculated in the usual manner. “Tholl J.A.” Tholl J.A. I concur. “Jackson J.A.” Jackson J.A. I concur. “Ryan-Froslie J.A.” Ryan-Froslie J.A.