Affinity Holdings Ltd. v Shaunavon (Town), 2022 SKCA 83

Court of Appeal for Saskatchewan Citation: Affinity Holdings Ltd. v Shaunavon (Town) , 2022 SKCA 83 Date: 2022-07-28 Docket: CACV3410 Between: Affinity Holdings Ltd. Appellant (Respondent) And Town of Shaunavon and Saskatchewan Assessment Management Agency Respondents (Appellants) Docket: CACV3411 Between: Central Plains Co-operative Ltd. Appellant (Appellant) And Town of Rosetown and Saskatchewan Assessment Management Agency Respondents (Respondents) Docket: CACV3412 Between: Pioneer Co-operative Ltd.

Appellant (Appellant) And Town of Maple Creek and Saskatchewan Assessment Management Agency Respondents (Respondents) Before: Jackson, Ottenbreit and Caldwell JJ.A. Disposition: Appeals dismissed Written reasons by: The Court On appeal from: 2019 SKSMB 90, 2019 SKSMB 15, 2019 SKSMB 91, Appeal heard: December 8, 2020 Counsel: Leonard D. Andrychuk, Q.C. for the Appellants Dona-Lynn Morley for the Respondents Table of Contents I. .... INTRODUCTION .. 1 II. ... WHAT STANDARDS OF REVIEW APPLY IN ASSESSMENT APPEALS? . 3 A. How has this Court interpreted the legislative scheme? . 7 1. What is an assessor? . 8 2.

What is an assessment and how is one prepared? . 11 3. What factors control the preparation of an assessment? . 12 4. How are taxes calculated on the assessed value of a property? . 13 5. How and when are assessments communicated to taxpayers and municipalities? . 14 6. Who may appeal an assessment and what errors may be alleged? . 16 7. What is the role of the assessor in an appeal to a board of revision? . 17 8. What is the role of the municipality in an appeal to a board of revision? . 17 9. What is the role of a board of revision? . 18 10. What is the Committee’s role? . 23

B. What standards of review govern the decision making of boards of revision? . 24 1. What standard of review should a board of revision employ with respect to the facts? ...... 24 2. What standard of review does a board of revision apply to questions of assessment law? 29 3. What standard of review applies to questions of assessment practice? . 30 4. What standard of review applies to questions of mixed fact and assessment law and to questions of mixed fact and assessment practice? . 31 5. What are the remedial powers of a board of revision? . 39 C.

What standards of review govern the decision making of the Committee? . 39 1. What standard of review governs the Committee’s decision making on questions of jurisdiction? 40 2. What standard of review governs the Committee’s decision making on questions of law? 41 3. What standard of review governs the Committee’s decision making on questions of fact? 41 4. What standard of review governs the Committee’s decision making on questions of mixed fact and assessment law and practice? . 42 5. What are the remedial powers of the Committee? . 43 D. What standard of review governs this Court’s decision making? . 44 E.

Summary of the standards of review in assessment appeals . 44 1. Appeal to a Board of Revision . 44 2. Appeal to the Committee . 46 3. Court of Appeal for Saskatchewan . 47 III. EQUITY IS ACHIEVED THROUGH THE APPLICATION OF THE MARKET VALUATION STANDARD .. 47 A. How is market valuation standard defined in the municipal Acts? . 48 B. How has this Court interpreted the market valuation standard? . 51 1. What is meant by “prepared using mass appraisal”? . 51 2. What is meant by “an estimate of the market value of the estate in fee simple in the property”? 56 3.

What is meant by “reflects typical market conditions for similar properties”? . 61 4. What is meant by “meets quality assurance standards established by order of the agency”? 70 C.

Summary of the

interpretation of market valuation standard . 71 IV. . DID THE COMMITTEE ERR IN LAW IN THESE APPEALS? . 72 A. 2018 Assessment Background . 72 B. The issues in each appeal 75 C. CACV3410— Affinity Holdings Ltd. v Town of Shaunavon and SAMA .. 75 1. Appeal to the Shaunavon BOR .. 76 2. Appeal to the Committee . 77 3. Review of the Shaunavon Decision for errors of law .. 78 D. CACV3411— Central Plains Co-operative Ltd. v Town of Rosetown and SAMA .. 87 1. Appeal to the Rosetown BOR .. 87 2. Appeal to the Committee . 88 3. Review of the Rosetown Decision for error of law .. 89 E. CACV3412— Pioneer Co-operative Ltd. v Town of Maple Creek and SAMA .. 92 1. Appeal to the Maple Creek BOR .. 92

2. Review of the Maple Creek Decision for error of law .. 93 V. ... CONCLUSION .. 95 APPENDIX A .. 96 The Court I. INTRODUCTION [ 1 ] Each of the appeals addressed under these reasons arises from the 2018 assessment of non-regulated properties pursuant to The Municipalities Act , SS 2005, c M-36.1 [ MA ]. The Saskatchewan Assessment Management Agency [SAMA] assessed each of the properties involved under the cost approach to valuation by applying a market adjustment factor [MAF] derived from sales data related to the same 53 commercial properties [Sales Array], which had been sold throughout Saskatchewan.

At bottom, the appellant taxpayers [1] — each as lead appellant for other taxpayers in the same municipality—say that equity has not been achieved in the assessment of their properties because the MAF does not reflect “typical market conditions for similar properties” and, therefore, the assessments do not meet the market valuation standard (see MA , s. 193 (e.1)). [ 2 ] Before addressing the common, bottom-line issue in the three appeals, we explore—in broad terms—the standards of review that should be employed at each level of the internal assessment appeal regime that the Legislature has established under the MA , The Cities Act , SS 2002, c C-11.1 [ CA ], and The Northern Municipalities Act, 2010 , SS 2010, c N-5.2 [ NMA ], as well as under The Municipal Board Act , SS 1988-89, c M-23.2 [ MBA ].

In keeping with this Court’s role in that appeal regime (see TNC Mall 2022 [2] at paras 20–28), we particularly look at the standards of review that apply in an appeal to a board of revision because this Court has not previously done so and there is apparent misapprehension in several quarters as to what the Legislature intended in that regard. We also review and aggregate this Court’s jurisprudence on the meaning of the term market valuation standard under the MA , CA and NMA [together, the municipal Acts].

And, lastly, we answer the questions of law raised in these appeals as to whether the Assessment Appeals Committee [Committee] of the Saskatchewan Municipal Board [SMB] erred by misinterpreting or misapplying the standards of review or the market valuation standard in its review of the decisions of the three boards of revision [3] [Boards]. [ 3 ] As procedural background, in separate proceedings before the relevant Board, each appellant taxpayer argued that the market valuation standard had not been met because the Sales Array contained two warehouse properties that are not similar to the taxpayer’s property.

Two of the three Boards disagreed and upheld the assessments but the Shaunavon BOR accepted the argument and ordered SAMA to further stratify the Sales Array to remove the two warehouses. All three Board Decisions were appealed to the Committee. [ 4 ] The Committee overturned the Shaunavon BOR Decision (see Shaunavon (Town) v Various (Altus) , 2019 SKSMB 90 [ Shaunavon Decision ]), and upheld the Rosetown BOR Decision (see Various (Altus) v Rosetown (Town) , 2019 SKSMB 15 [ Rosetown Decision ]) and the Maple Creek BOR Decision (see Various (Altus) v Maple Creek (Town) , 2019 SKSMB 91 [ Maple Creek Decision ]).

In terms of overall result, this means the Committee confirmed the 2018 assessments in all cases. [ 5 ] Although each is a separate appeal to this Court, these matters may be addressed together because, as required under s. 33.1 of the MBA , the taxpayers allege that the Committee erred in law in ways that do not turn on facts specific to each matter. In that regard, pursuant to their respective grants of leave to appeal, the appellant taxpayers assert in common that the Committee: (

a) erred in its selection of the standards of review to apply to a decision of a board of revision or its application of the standards in its review of a board decision; (

b) incorrectly found a Board had selected and applied the correct standards of review of an assessment, including in respect of the breadth and scope of assessor discretion and when deference is to be accorded to an exercise of discretion by an assessor; (

c) incorrectly interpreted and applied the market valuation standard, particularly by misinterpreting the phrases: (

i) similar properties ( MA , ss. 193 (e.1)(iii) and 195(7)); (ii) allowing for statistical testing ( MA , s. 193 (e.3)); and (iii) quality assurance standards established by order of the agency ( MA , s. 193 (e.1)(iv)); and (

d) incorrectly interpreted and applied s. 195(7) of the MA and Imperial Oil 2016 , when addressing the issue of whether equity had been achieved in the assessment of non-regulated property. [ 6 ] After considering these arguments, we find there is no basis in law for this Court to intervene in these matters and we dismiss the appeals. II. WHAT STANDARDS OF REVIEW APPLY IN ASSESSMENT APPEALS? [ 7 ] The first two questions of law raised in these appeals—about standards of review—are of general application to all assessment

appeals, whether under the MA , the CA , or the NMA , and may have application in other appeals taken to this Court under s. 33.1 of the MBA , whether pertaining to decisions of the Committee or decisions of the SMB under other statutes. As such, it is worth exploring the appropriate standards of review in broad terms before we address the questions of law in these appeals that engage directly with the Committee’s analyses of the Board Decisions . [ 8 ] We begin with a general overview.

An assessment is, at its most basic, a decision having its source in the powers of the state and it is, therefore, subject to judicial oversight. As an assessment appeal involves consideration of an exercise of statutory power, the analysis of which standards of review apply at each level of the assessment appeal regime starts with, but quickly departs from, Vavilov . In that case, the majority of the Supreme Court set out a revised framework for determining the standard of review a court should apply when the merits of an administrative decision are challenged.

Under the Vavilov framework, the presumptive standard of review is reasonableness in external—i.e., judicial—review of administrative decisions (at para 16). [ 9 ] However, in the property assessment field, the Legislature has established an internal appeal regime under the municipal Acts and within it the Committee and boards of revision are not, of course, courts. They are internal appellate tribunals. As such, they apply internal standards of review when deciding assessment appeals. As this Court concluded in E.Z.

Automotive : [69] None of this [i.e., the Vavilov framework] applies to internal appellate review. Administrative decisions are not subject to internal appellate review unless the legislation provides for such a review. The presumption of reasonableness review does not apply, as that presumption is rooted in the fact that judicial review is, by definition, review of administrative action by a superior court. Accordingly, the provision for an appeal to an administrative tribunal cannot be read, in and of itself, as sending a signal to depart from the presumptive standard.

Further, the appellate standards of review applied by courts, which are shaped in large part by institutional considerations relating to courts, have no parallel in correlation to internal appellate tribunals. [ 10 ] While it does not address internal appellate tribunals, Vavilov recognises and respects the role of legislative intent in determining the applicable standards of review ( E.Z. Automotive at paras 70–72).

On the whole of it, the jurisprudence pre- and post- Vavilov supports an approach to determining the internal standards of review for each level of assessment appeal that focusses on the legislative scheme under the municipal Acts and the roles that the Legislature has assigned to assessors, boards of revision, the Committee and this Court (see, e.g., Dunsmuir at para 30). [ 11 ] This means that an appeal from an assessment or from the decision of a board of revision does not presumptively invoke either traditional judicial appellate standards of review or the judicial review standard of reasonableness ( City Centre at paras 42–59).

Rather, because the Legislature is free to “design any type of multi-level administrative framework to fit any particular context” ( Huruglica at para 46), this Court’s task is to interpret the appellate scheme set out by the Legislature under the municipal Acts, The Public Inquiries Act, 2013 , SS 2013, c P-38.01 , The Assessment Management Agency Act , SS 1986, c A-28.1 [ AMAA ], the MBA , and The Court of Appeal Act, 2000 , SS 2000, c C-42.1 , to determine the standards of review that should apply and when they should apply at each level of appeal ( City Centre at para 59).

We must do this while being mindful of the interpretive instructions in The Legislation 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 their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act and the intention of the Legislature” and that every Act and regulation “is to be construed as being remedial and is to be given the fair, large and liberal

interpretation that best ensures the attainment of its objects”. Given the jurisprudential history of property assessment law in Saskatchewan, this Court has, to a great extent, already carried out this interpretive exercise (see, e.g., City Centre , Redhead and TNC Mall 2022 ). [ 12 ] There are four types of review that could apply at each level of the multi-tiered appeal structure that the Legislature has established for property assessments. Moving from the least to the most deferential, they are: (

a) a de novo review, where the reviewing body would start afresh by making its own findings without regard for any findings in the decision under review; (

b) a correctness review, where the reviewing body would review the particular findings (most often, on questions of law) in the decision under review for their correctness, without deferring to the maker of that decision; (

c) a reasonableness review, where the reviewing body would review the particular findings in the decision under review while according a measure of deference to the decision-maker, which depends on the principles that guide the decision; and (

d) a review for palpable and overriding error, where the reviewing body would review individual findings (most often, on questions of fact) for a palpable error that has led to the wrong result. [ 13 ] The markers of legislative intent that indicate which of these types of review apply in a multi-tiered appellate regime are purpose, structure, function and expertise.

In the property assessment context, the Legislature has granted taxpayers, municipalities and others the right to access three levels of appeal from the decision of an assessor (i.e., from an assessment) but it would be an error to say that any one of these levels calls for a de novo review. There are many reasons for this—all of which are derived from the municipal Acts and related legislation as has been interpreted by this Court. [ 14 ] Most critically, the Legislature has not directed a de novo review to occur at any level of the assessment appeal regime.

It has used the language of appeal throughout the municipal Acts. This choice of language itself implicates many aspects of how the review at each level of the regime should be conducted. [ 15 ] Another marker of legislative intent is timing. This Court has found that the Legislature intended that the process of property assessment and taxation under the municipal Acts should occur largely within a calendar year ( Newell Smelski at para 38 and Corman Park at paras 14–30).

The time required to conduct a de novo review at any level is incompatible with the timelines established under the municipal Acts for the annual assessment and taxation of property. [ 16 ] The legislative limits imposed on the remedial powers exercisable by each level of decision-maker confirm that the review at each level of the appellate regime is not de novo . We will say more about the function of each decision-maker later in these reasons. It is sufficient to mention at this preliminary stage that the controlling factor of equity (as defined in the municipal Acts) binds all decision-

makers from the assessor to the Committee: (a) “the dominant and controlling factor in the assessment of property is equity” ( MA , s. 195(5) ; CA , s. 165(3); NMA , s. 218(5) ); and (b) “an assessment shall not be varied on appeal if equity has been achieved with similar properties” ( MA , ss. 240(3) and 256(3.1) ; CA , ss. 210(3) and 226(3.1); NMA , ss. 261(4) and 277(4) ). [ 17 ] Lastly, the specialised nature of what an assessor does within the property assessment regime further lends to the conclusion that the Legislature did not intend for de novo review of an assessment to occur at any level of appeal.

Assessors are professionals who must obtain levels of qualification, certification and knowledge in order to practice their craft within the assessment regime. This Court has long recognised that fact: …Law and fact aside, the application of the body of appraisal principles and practice found in the Manual entails, in turn, the exercise by the assessor of skill and judgment, even a measure of discretion. What is called for in the exercise of that skill and judgment is the structured formulation of consistent opinions as to fair and equitable value for the purposes of property taxation in the municipality.

This is what the Manual suggests, saying that while the systematic application of the principles, rules, and formulas found in the manual is necessary to achieve the ends of tax equalization, its use “cannot replace the personal judgment of the valuator in his work.

He is the backbone of local tax administration.” ( Laing at para 28) [ 18 ] Having determined that the Legislature did not intend for a de novo review to occur at any level of appeal, the most significant question for this Court is what standard of review should a board of revision apply to findings of fact and of mixed fact and law made by an assessor?

These are the only remaining issues of substance because, in appellate terms, questions of law are almost invariably resolved on a correctness standard—and, as we confirm below, that standard applies to questions of law at each level of the assessment appeal regime. [ 19 ] We explain the applicable standards of review in greater depth throughout the course of these reasons.

At the outset, it is important to note that the structure of the property assessment regime not only dictates that the Legislature did not intend a de novo review at any level but that structure also sheds light on what standard of review each level of decision-maker should apply in its review. For example, if the Legislature had intended to isolate an assessor’s decision from review, it would not have established a hierarchy of appeals under the municipal Acts or it would have specified a standard of review designed to achieve that end.

Further, because the Legislature established three levels of appeal, it must be taken as an intention that a meaningful review occur at each level, which would be impeded by a review for palpable and overriding error.

The Legislature knows that assessors are professionals who hold expertise in their field but still provided for multiple levels of appeal from assessments and, therefore, the application of the palpable and overriding error standard of review would not be appropriate. [ 20 ] As we explain below, a reasonableness review that respects the legislated mandate of assessors and that conveys the appropriate level of deference to their expertise, while recognising that review by a board of revision must be meaningful, best accords with the appellate regime the Legislature has chosen to establish under the municipal Acts.

As the majority of the Supreme Court indicated in Vavilov , a reasonableness review takes its contours from context and purpose, all of which we explore in these reasons. A. How has this Court interpreted the legislative scheme? [ 21 ] As this Court observed in City Centre , there are three internal, decision-making roles under the statutory property-assessment regime: (

i) the assessor; (ii) the board of revision; and (iii) the Committee. This Court, as well, plays a supervisory role in the statutory scheme (see TNC Mall 2022 ). While each of these roles must be examined, the analysis begins with a rudimentary explanation of the assessment regime. 1. What is an assessor? [ 22 ] In this Court’s jurisprudence, the person who prepares an assessment has usually been referred to as the assessor . However, when SAMA carries out its role, it does so as an assessment appraiser ( AMAA , ss. 2 (

c) and 13(2) ). [ 23 ] An assessment appraiser is someone appointed by a municipality to physically inspect properties and to estimate assessed values for purposes of taxation ( AMAA , ss. 2 (

c) and 13(2) ). As professionals, assessment appraisers are governed by and are subject to discipline under The Assessment Appraisers Act , SS 1995, c A-28.01 . An assessor is someone appointed by a municipality to compile the assessment roll ( MA , s. 2(1) (c); CA , s. 174(1); NMA , s. 2(1) (b)). The conflation of these roles likely results from two statutory facts. First, the functions of an assessment appraiser for some cities may be carried out by the city’s assessor, without the engagement of SAMA ( AMAA , ss. 12(2) (a), 22(2) and 22(3) ).

Second, where that does not occur, SAMA, qua assessment appraiser, has the powers and duties of, and is deemed to act in the place of, the municipality’s assessor for the purpose of defending (in an appeal) the assessed value of a property ( AMAA , s. 22(15) ). [ 24 ] As the roles of assessor and assessment appraiser often converge in an appeal, the word assessor has been used in the jurisprudence and is used in these reasons; however, where they will not overlap, the term assessment appraiser is used in these reasons to refer to the person who physically inspects properties, classifies them and estimates their assessed values. [ 25 ] In City Centre , this Court described the role of the assessor under the CA in these terms: [63] An assessor is a person appointed by a city (s. 163(c.1) of The Cities Act ).

Assessors must determine to which class (established by the regulations) any property belongs (s. 166(3)), calculate the assessment of property that belongs to a class of property established under s. 166(1), and determine the taxable assessment of the property by multiplying the assessment by the percentage of value applicable to the

class of property to which the property belongs (s. 167). An assessor may request information from persons to exercise this role (see s. 171 for details). [64] Further, an assessor is responsible for preparing the annual assessment roll for all assessed property (s. 174), making that roll available for the public’s inspection (s. 183(1)), and, unless a city council dispenses with the requirement, preparing annual assessment notices (s. 184(1)). [65] There is a presumption that assessments prepared by an assessor are correct: see [ Walmart 2018 at para 69].

However, while this presumption exists, the discretion of an assessor is not unlimited. I will return to this issue below. At this point, all that need be said is that where an assessor errs, the Board may intervene to address this error. [ 26 ] Given the nature and importance of property assessment to municipalities and to taxpayers, each municipal Act states that no assessor shall wilfully: (

a) make a fraudulent assessment; (

b) enter in the assessment roll the name of a person who should not be so entered or a fictitious name; (

c) omit the name of a person who should be entered in the assessment roll; or (

d) neglect any duty required of the assessor by this Act. ( MA , ss. 211(3) ; CA , s. 181(3)); NMA , ss. 232(3) ) [ 27 ] The AMAA also provides as follows with respect to the powers and duties of assessment appraisers (and assessors who carry out that function): Right of entry, etc. 23

(1) An assessment appraiser may, after making reasonable efforts to notify the owner or occupier of any property to be entered for the purpose of carrying out a valuation, enter that property at any reasonable time and carry out the valuation.

(1.1) The assessment appraiser shall display or produce on request identification showing that he or she is authorized to make the entry.

(2) If a person refuses to allow or interferes with a valuation, or if a person fails to respond to an assessment appraiser’s reasonable requests for access to a property for the purposes mentioned in subsection (1), the assessment appraiser may apply ex parte to a justice of the peace or a provincial court judge for a warrant authorizing a person named in the warrant to enter the property and to carry out the valuation.

(2.1) On an application pursuant to subsection (2), the justice of the peace or provincial court judge may issue the warrant sought, on any terms and conditions that the justice of the peace or the provincial court judge considers appropriate.

(3) Every person who has property that is liable to assessment shall, either personally or through an agent: (

a) provide an assessment appraiser with the particulars required by the assessment appraiser for the purpose of making a valuation of the real property or the fixtures, machinery or other equipment valuation; and (

b) if required by the assessment appraiser, deliver to the assessment appraiser a written statement, signed by the person or his or her agent, containing the particulars mentioned in clause (a).

(4) Notwithstanding subsections (1) to (3), an assessment appraiser shall not enter any place that is a private dwelling without: (

a) the consent of the owner or occupier of the private dwelling; or (

b) a warrant issued pursuant to subsection (2.1) from a justice of the peace or a provincial court judge authorizing the entry. Disclosure of information 24

(1) This

section applies to: (

a) every assessment appraiser; (

b) every assessor; (

c) every member of a board of revision or the Saskatchewan Municipal Board; (

d) every party to an appeal or agent of a party; and (

e) every other person employed by the agency, a board of revision, a municipality or the Saskatchewan Municipal Board.

(2) Subject to subsection (3), every person mentioned in subsection (1) is guilty of an offence if that person: (

a) in the course of his or her duties, acquires or has access to information furnished by any person: (

i) that is not required to be entered on the assessment roll; and

(ii) that relates in any way to the determination of: (

A) the value of any property subject to assessment and taxation or the amount of assessment of property; or (

B) the actual income and expenses related to an individual property; and (

b) wilfully discloses or permits to be disclosed any information mentioned in clause (

a) to any person who is not entitled pursuant to this Act or any other Act to acquire or have access to that information.

(3) Nothing in this

section shall be construed as preventing the disclosure of the information mentioned in clause (2)(

a) by any person if that person is being examined as a witness in an assessment appeal, arbitration, action or other court proceeding. SAAA to certify persons 24.1

(1) The SAAA [defined in s. 2 (o.2) of the AMAA as meaning the Saskatchewan Assessment Appraisers’ Association] shall certify whether persons who propose to undertake valuations for assessment purposes meet the standards for competency and proficiency prescribed in the regulations made pursuant to subsection 18(2) of The Assessment Appraisers Act .

(2) The SAAA may certify a person pursuant to subsection (1) who produces evidence satisfactory to the council that the person meets the requirements for registration as a member of the SAAA prescribed in the regulations made pursuant to subsection 18(2) of The Assessment Appraisers Act .

(3) Licensed members of SAAA are deemed to be certified for the purposes of this section.

(4) On or before February 1 in each year, the SAAA shall file with the agency a list, certified by the registrar to be a true list, showing the names of all persons certified pursuant to this

section as at January 1 of that year.

Immunity 24.2 No action lies or shall be commenced against the agency, a member of the board or an employee or agent of the agency for any loss or damage suffered by a person by reason of anything in good faith done, caused, permitted or authorized to be done, attempted to be done or omitted to be done by any of them pursuant to or in the exercise or supposed exercise of any power conferred by this Act or the regulations or in the carrying out or supposed carrying out of any duty imposed by this Act, the regulations, the municipal Acts or the regulations made pursuant to those Acts. 2.

What is an assessment and how is one prepared? [ 28 ] An assessment is an estimate of the value of a property as at a certain date. [ 29 ] The term market value refers to the amount that a property should be expected to realize if the estate in fee simple were sold in a competitive and open market by a willing seller to a willing buyer, each acting prudently and knowledgeably, and assuming that the amount is not affected by undue stimuli ( MA , s. 193 (e.2); CA , s. 163(f.2); NMA , s. 215 (g)). [ 30 ] All assessments must be prepared using mass appraisal only ( MA , s. 195(1) ; CA , s. 165(1); NMA , s. 218(1) ), which refers to the process of preparing assessments for a group of properties as of a base date using standard appraisal methods, employing common data and allowing for statistical testing ( MA , s. 193 (e.3); CA , s. 163(f.3); NMA , s. 215 (h)). [ 31 ] An assessment must reflect the facts, conditions and circumstances affecting the property being valued as at January 1 of each year as if those facts, conditions and circumstances existed on the applicable base date ( MA , s. 195(4) ; CA , s. 165(3.1); NMA , s. 218(4) ). [ 32 ] Subject to s. 22(12.1) of the AMAA , an assessment must also “reflect any decision of [the Committee] that has been issued with respect to the property” in question, unless the decision has been appealed pursuant to s. 33.1 of the MBA ( MA , s. 195(4.1) ; CA , s. 165(3.2); NMA , s. 218(4.1) ).

Where SAMA acts as the assessment appraiser, the AMAA provides: 22

(12.1) If the appeal board has issued a decision with respect to a property, an assessment appraiser: (

a) shall apply the decision of the appeal board in subsequent valuations and revaluations of that property; and (

b) in applying the decision pursuant to clause (a), may make any necessary modification to reflect any change in the facts of the decision, in the conditions or circumstances of the property or in market value as defined in the municipal Act. 3. What factors control the preparation of an assessment? [ 33 ] The dominant and controlling factor in the assessment of property is equity ( MA , s. 195(5) ; CA , s. 165(3); NMA , s. 218(5) ). [ 34 ] There are two types of property assessments.

A regulated property assessment is an estimation of the value of agricultural land, resource production equipment, railway roadway, heavy industrial property or pipelines ( MA , s. 193 (h); CA , s. 163(h.1); NMA , s. 215 (l)). A non-regulated property assessment is an estimation of the market value of a property that is not a regulated property ( MA , s. 193 (e.4); CA , s. 163(f.4); NMA , s. 215 (i)). [ 35 ] Equity in regulated property assessment is achieved by applying the regulated property assessment valuation standard uniformly and fairly ( MA , s. 195(6) ; CA , s. 165(4); NMA , s. 218(6) ).

Equity in non-regulated property assessment is achieved by applying the market valuation standard so that assessments bear a fair and just proportion to the market value of similar properties as of the applicable base date ( MA , s. 195(7) ; CA , s. 165(5); NMA , s. 218(7) ). SAMA has adopted guidelines that call for the application of the market valuation standard under the regulated property assessment valuation standard ( MA , s. 193 (i); CA , s. 163(h.2); NMA , s. 215 (m); see

also CCRL 2020 at para 46). [ 36 ] Nonetheless, the achievement of equity through the application of the market valuation standard differs in each type of property assessment by reason of the different ways equity is achieved—i.e., in regulated-property assessment, equity is achieved by applying the regulated property assessment valuation standard uniformly and fairly; and, in non-regulated property assessment, it 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.

See Imperial Oil 2016 at para 9 and CCRL 2020 at paras 44–48. a. What does the market valuation standard entail? [ 37 ] The term market valuation standard refers to the standard achieved when the assessed value of a property is prepared using mass appraisal, is an estimate of the market value of the estate in fee simple in the property, reflects typical market conditions for similar properties, and meets quality assurance standards established by SAMA.

This standard is explained in greater detail below (at paragraphs [153] to [234]). [ 38 ] While the municipal Acts define the phrase market valuation standard , the full meaning of that term is derived from the AMAA , the existing jurisprudence of this Court, as well as the Saskatchewan Assessment Manual (2019 Base Year) (Regina: SAMA, 2019) [ Manual ], the Market Value Assessment in Saskatchewan Handbook , ver 3 (Regina: SAMA, 2019) [ Handbook ], SAMA’s 2019 Cost Guide , ver 1.1 (Regina: SAMA, 2019) [ Cost Guide ], and other guidelines adopted by SAMA [ SAMA Guidelines ].

The Manual is used by assessors in the assessment of regulated property. The Handbook is used by assessors in the assessment of non-regulated property. The Cost Guide is used in both regulated and non-regulated property assessments. 4. How are taxes calculated on the assessed value of a property? [ 39 ] Property assessment and the assessment appeal regime (see MA ,

Part X—Property Assessment; CA ,

Part X—Assessment; NMA ,

Part X—Property Assessment) stand apart from the taxation of properties by municipalities (see MA ,

Part XI—Taxation; CA ,

Part XI—Property Tax; NMA ,

Part XI—Taxation), but property assessment forms the basis for municipal taxation. Before the property taxes payable to a municipality can be calculated, an assessment appraiser (or the assessor in some cities) must first determine to which class of property, if any, a property belongs ( MA , s. 196(3) ; CA , s. 166(3); NMA , s. 219(3) ).

After the assessment appraiser (or assessor) estimates the market value of a property (i.e., the assessed value), the assessor determines the taxable assessment of the property by multiplying the assessed value by the percentage of value applicable to the class of property to which the property belongs ( MA , s. 197 ; CA , s. 167; NMA , s. 220 ). [ 40 ] The classes of property and the percentages of value that are applicable to each class are set forth in the regulations under each municipal Act ( MA , ss. 196 and The Municipalities Regulations , RSS c M-36.1 Reg 1,

Part V; CA , s. 166, and The Cities Regulations , RRS c C-11.1,

Part III; NMA , ss. 219 and The Northern Municipalities Regulations , RSS c N-5.2 Reg 1,

Part V). 5. How and when are assessments communicated to taxpayers and municipalities? [ 41 ] In Corman Park (at paras 15–30), this Court reviewed the timelines established under the municipal Acts for the assessment and taxation of property and for appeals against assessments. Most notably, this Court observed, referring to the MA , that: [16] Under the current statutory scheme, a municipality must prepare an annual assessment roll no later than May 1 of a year (s. 204(1)).

The assessor must make the assessment roll available for public inspection immediately upon its completion (s. 213(1)) and the municipality must send out its assessment notices within 15 days after its completion (s. 216(1)), at which time a 30-day appeal period begins to run (s. 226(1)(a)). The municipality must also publish the assessment roll in The Saskatchewan Gazette within 15 days of its completion (s. 217(1)), at which time a parallel 30-day appeal period begins to run in circumstances where a notice of assessment has not been mailed to a person (s. 226(1)(b)).

A board of revision may extend the 30-day appeal period by two weeks, but only if the notice of appeal does not comply with s. 225 (s. 226(3)). The board of revision also has discretionary authority to relieve against strict adherence to the statutory timeline in cases of procedural defect that does not affect the substance of the appeal: Marose Investments at paras 22–24. [17] Alongside this aspect of the statutory scheme, SAMA is required to confirm the assessment roll for a municipality on the basis of returns by assessors (s. 258(2)).

SAMA undertakes this process in respect of each municipality for which it acts as the assessment agent and it involves each property not subject to a tax exemption within each such municipality. The importance of this process to this appeal lies in the statutory time marks for preparation and completion of the assessment roll and in the effect of its confirmation by SAMA. [18] The process starts with assessors, who may make their returns to SAMA on or after January 1 of the year (s. 258(1)).

Importantly, the assessors’ returns will show the particulars of any alterations to the municipality’s assessment roll since it was last confirmed , which would necessarily include alterations that may have resulted from orders of a board of revision, the Committee or this Court.

But, SAMA is not obliged to wait for those decisions and SAMA may confirm an assessment roll “[n]otwithstanding that there may be further appeals pending” (s. 258(2)). [19] The order of things is highlighted here because s. 241 of The Municipalities Act provides that assessors must make “any changes” to an assessment roll that are “necessary to reflect the decision” of a board of revision or an agreement entered into pursuant to s. 228 (see also s. 228(3)), each of which occurs before July 31 of the year of assessment.

However, under s. 256(5), an assessor must make “any changes” to an assessment roll that are “necessary to reflect the decision” of the Committee, only where “the assessment roll has not been confirmed.” Reinforcing this limitation, s. 305(1) provides that, if an assessment roll has been confirmed before appeals to the board of revision, the Committee or this Court have been concluded, no amendment or alteration may be made to the assessment roll.

There are only two exceptions to this statutory prohibition in s. 305(1). [20] The first exception is that, if an “error or omission in any of the information shown on the assessment roll is discovered or if a corrective action is required as a result of an assessment audit”, the assessor may “correct the assessment roll”, but only for the current year (s. 208(1)), with the correction taking effect January 1 of that year (s. 208(3)). Where this is done, and if the correction affected the

assessment class of the property (s. 205(d)), the assessed value of the property (s. 205(e)), the assessed value after applying a property class multiplier (ss. 196(1) and 205(f)) or a notation of tax exemption (s. 205(h)), then the assessor must send an amended notice of assessment to the persons affected (s. 208(2)). Furthermore, where the assessor has issued an amended notice of assessment, the Legislature has expressly granted the same rights to appeal against that amended notice of assessment as it has granted against an original notice of assessment.

The Legislature has also extended the timelines for such an appeal to accommodate the later date of an amended notice of assessment (s. 208(2.2)). [21] The notable points here are that the Legislature has thought about and provided extended appeal rights in the circumstances of s. 208 (see also s. 219 regarding supplemental assessments). It has done so in a way that does not disrupt the time marked for the finalisation and confirmation of the assessment roll. And, the Legislature has used the issuance of a new or amended notice of assessment to trigger the appeal process.

However, the Legislature has not made provisions for an assessor to issue a new, amended or revised notice of assessment in circumstances where the Committee has set aside the original assessment and ordered a reassessment.

Given the scheme of the relevant legislation, this absence of a statutory appeal provision would seem to preclude a finding that remittal by the Committee for reassessment refreshes the appeal process. [22] The second exception under s. 305(1) arises under s. 209, which requires an assessor to add a person’s name to the assessment roll after verifying a request to do so received from a person whose name is already on the roll.

This type of amendment to the assessment roll does not affect the assessed value of the property and, presumably for that reason, the Legislature has not granted a right to appeal against this type of amendment nor has it extended the timeline of the appeal process in this circumstance. … [30] As mentioned at the outset, the assessment and appeal timelines are important because the assessment process underpins the calculation and recovery of the municipal property taxes payable in respect of all taxable property within a municipality.

The tax rates and calculations themselves are neither relevant nor material to this appeal, but it is material that each municipality must, on or before August 15 of a year, prepare a tax roll (s. 263), which date is about two weeks after the last day on which boards of revision are permitted to decide assessment appeals (s. 240(4)). Municipalities must send out their tax notices before September 1 of the year in which the taxes are imposed (s. 267(1)).

Property taxes are deemed due at January 1 of each year (s. 266) and a municipality must, by law, impose penalties on taxpayers who do not pay their municipal property taxes before December 31 (s. 280). Through other provisions, The Municipalities Act sets out various mechanisms and processes for enforcing the payment of municipal tax. Importantly, however, taxes levied on assessments are not recoverable until the assessment roll has been confirmed by SAMA (s. 258(6)).

All of this demonstrates the Legislature’s intention that the process of property assessment and taxation should occur largely within a calendar year, as Cameron J.A. concluded in Newell Smelski . (Emphasis in original) [ 42 ] As noted, assessors must prepare an assessment roll for each year for all assessed property in a municipality ( MA , s. 204 ; CA , s. 174; NMA , s. 225 ). The assessment roll must show for each assessed property: (

a) the location of the property; (

b) the contact information of the assessed person, if known; (

c) whether the property is a parcel of land, an improvement or a parcel and the improvements to it; (

d) the assessment class or classes; (

e) the assessed value of the property; (

f) the assessed value of the property after applying the applicable percentage of value set by regulation; (

g) whether the property is assessable for public school purposes or separate school purposes; (

h) if the property is exempt from taxation, a notation of that fact; and (

i) any other information considered appropriate by the municipality. [ 43 ] Based on the assessment roll, the assessor must annually prepare assessment notices for all assessed properties ( MA , s. 214 ; CA , s. 184(1); NMA , s. 235 ).

Each assessment notice must contain the same information that is required to be shown on the assessment roll as well as, among other information, the date by which an appeal is required to be made and the contact information of the municipality to enable an assessed person to discuss the notice of assessment or a potential appeal ( MA , s. 215(1) ; CA , s. 185(1); NMA , s. 236(1) ). 6.

Who may appeal an assessment and what errors may be alleged? [ 44 ] Persons who have an interest in any property affected by the valuation or classification of any property may appeal an assessment if they believe that an error has been made in the valuation or classification of the property or in the preparation or content of the assessment roll or assessment notice ( MA , s. 225(1) ; CA , s. 197(1); NMA , s. 246(1) ). [ 45 ] A municipality, other taxing authority or SAMA may appeal an assessment on the grounds that an error has been made in the valuation or classification of any property in the preparation of the relevant assessment roll or assessment notice or in the content of the assessment roll or assessment notice ( MA , s. 225(3) ; CA , s. 197(3); NMA , s. 246(3) ). [ 46 ] SAMA must be made a party to an appeal if it prepared the valuation or classified any property being appealed—i.e., if it acted as the assessment appraiser—or if the appeal has been brought by a municipality or other taxing authority ( MA , s. 225(4) ; CA , s. 197(4); NMA , s. 246(4) ). [ 47 ] In every case, the notice of appeal must be in writing and must set out “the specific grounds on which it is alleged that an error exists” ( MA , s. 225(6) (a); CA , s. 197(6)(a); NMA , s. 246(6) (a)) and, in

summary form, “the particular facts supporting each ground of appeal” ( MA , s. 225(6) (b); CA , s. 197(6)(b); NMA , s. 246(6) (b)). If the appellant knows the change to the assessment roll that it desires, that change must also be set out in the notice of appeal ( MA , s. 225(6) (c); CA , s. 197(6)(c); NMA , s. 246(6) (c)). 7. What is the role of the assessor in an appeal to a board of revision? [ 48 ] Although the assessor is the decision-maker who determines the assessed value of the property in question, the assessor plays a continuing role within the appeal regime whenever an assessment is appealed.

For example, the assessor has its own filing requirements in an assessment appeal before a board of revision and, in this way, the assessor stands apart from the municipality, regardless of whether the municipality is an appellant or a respondent:

(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 [ MA , s. 195(4.1) ; CA , s. 165(3.2); NMA , s. 218(4.1) ] 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. ( MA , s. 230(4) ; CA , s. 200(4); NMA , s. 251(5) ) [ 49 ] The materials filed by assessors are the “record relating to the assessment” which “stands apart from the advocacy and evidentiary material that are expected from the taxpayer and municipality” ( GFL Environmental at para 49).

However, as noted, when SAMA acts as the assessment appraiser, it assumes the powers and duties of, and is deemed to act in the place of, the municipality’s assessor for the purpose of defending the assessed value of a property ( AMAA , s. 22(15) ). In practical terms, this means that, while SAMA places the “neutral record explaining the basis for the assessment” before the board of revision ( GFL Environmental at para 50), it also advocates in defence of the assessment on the basis of that neutral record and other evidence adduced by or through another party to the appeal. 8.

What is the role of the municipality in an appeal to a board of revision? [ 50 ] A municipality, or other taxing authority, may be an appellant or a respondent to an assessment appeal made to a board of revision. Whether appellant or respondent, the municipality has a pre-appeal obligation to discuss the assessment with the taxpayer. This obligation is not expressed in the municipal Acts but is derived from the statutory requirements for notices of assessment and of appeal. A notice of appeal must: (

d) include: (

i) a statement 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 (ii) if the appellant and the respondent have not discussed the appeal, a statement to that effect specifying why no discussion was held; … ( MA , s. 225(6) ; CA , s. 197(6); NMA , s. 246(6) ) 9. What is the role of a board of revision? [ 51 ] A board of revision is an administrative tribunal, typically consisting of three individuals appointed by the council of a municipality, that hears appeals against property assessments ( MA ,

Part X, Divisions 5 and 6; CA ,

Part X, Divisions 5 and 6; NMA ,

Part X, Divisions 5 and 6). Commencing with the 2023 taxation year, all boards of revision must be certified by the Office of the Registrar of boards of revision, which may occur where the Registrar is satisfied that each member of a board of revision and its secretary have completed “the relevant training approved by the minister with respect to property assessment appeals” and the board has otherwise met all other certification requirements set by the minister ( The Municipalities Regulations ,

Part V.1; The Cities Regulations ,

Part III.1); The Northern Municipalities Regulations ,

Part V.1). [ 52 ] In City Centre , this Court described how boards of revision fit within the statutory appeal regime: [66] Boards of revision are established pursuant to s. 192 of The Cities Act .

A board of revision hears a taxpayer’s appeal from the decision of an assessor, and is required to pay appropriate deference to an assessor’s decision when hearing such an appeal (see Walmart 2018 ). … [71] As noted in Corman Park , “Even though the Legislature has constrained when and how a first-level assessment appeal may be commenced, boards of revision have fairly broad discretion to determine the procedure for an appeal hearing, subject to procedural fairness or the rules of natural justice” (at para 42).

The proceedings before a board of revision are governed by s. 203 of The Cities Act : Proceedings before board of revision 203(1) Boards of revision are not bound by the rules of evidence or any other law applicable to court proceedings and have power to determine the admissibility, relevance and weight of any evidence.

(2) Boards of revision may require any person giving evidence before them to do so under oath.

(3) All oaths necessary to be administered to witnesses may be administered by any member of the board of revision hearing the appeal.

(4) A board of revision may make rules to govern its proceedings that are consistent with this Act and with the duty of fairness. A board of revision may also compel the attendance at the hearing of persons “having charge of the assessment roll” or “of any books,

papers or documents relating to the matter of an appeal” (s. 203.1)). [72] Before the board of revision, witnesses may also be called in accordance with s. 205. Parties to the appeal may testify and may call witnesses to testify at the hearing (s. 205(1)). Parties may request that the secretary issue a subpoena to any person to (

a) appear before the board, (

b) to give evidence, or (

c) to “produce any documents and things that relate to the matters” at issue in the appeal (s. 205(1)).

Further, any party to an appeal must “tender all of the evidence on which he or she relies at or before the board revision hearing” (emphasis added, s. 206). [ 53 ] Although City Centre summarised some of the procedural, evidentiary and fact-finding powers that the Legislature has granted to boards of revision, for the purposes of the analysis that follows it will be helpful to identify and set out the specifics of those powers, as taken from the MA : Production of assessment roll 234 If directed by the board of revision, the person having charge of the assessment roll, or any person having charge of any books, papers or documents relating to the matter of an appeal, shall: (

a) appear; and (

b) produce the assessment roll and all papers and writings, or books, papers or documents, in his or her custody connected with the matter of appeal. Witnesses 235

(1) A party to an appeal may testify, and may call witnesses to testify, at the hearing of the appeal before the board of revision.

(2) For the purposes of a hearing before a board of revision, a party may request the secretary of the board of revision to issue a subpoena to any person: (

a) to appear before the board; (

b) to give evidence; and (

c) to produce any documents and things that relate to the matters at issue in the appeal.

(3) For the purposes of hearing and deciding an appeal, a board of revision may, by order, summons a person: (

a) to appear before the board; (

b) to give evidence; and (

c) to produce any documents and things that relate to the matters specified in the order.

(4) The party requesting the secretary of a board of revision pursuant to subsection (2) to issue a subpoena, or any party that the board of revision making an order pursuant to subsection (3) specifies in the order, shall serve the subpoena or summons on the person to whom it is directed.

(5) For the purposes of subsection (4), service of a subpoena or summons is to be effected by: (

a) personal service on the person to whom it is directed; or (

b) registered mail sent to the address of the person to whom it is directed.

(6) Subject to subsection (7), no person who is served with a subpoena or summons pursuant to subsection (4) shall: (

a) without just excuse fail to attend at the time and place specified in the subpoena or summons; or (

b) refuse to testify or produce documents as required pursuant to the subpoena or order.

(7) If a person who is not a party is required by a subpoena or summons to attend at a hearing of an appeal, the person is relieved of the obligation to attend unless, at the time of service of the subpoena or summons, attendance money calculated in accordance with

Schedule IV of The Queen’s Bench Rules is paid or tendered to the person.

(8) Unless the board of revision otherwise orders, the party responsible for service of a subpoena or summons is liable for payment of attendance money pursuant to subsection (7). Parties to tender all their evidence 236 Any party to an appeal shall tender all of the evidence on which the party relies either at or before the board of revision hearing. … Recording of hearing or testimony 238

(1) If, at least two days before the day scheduled for the hearing of an appeal to the board of revision, a party to the appeal requests that the hearing or part of the hearing or the testimony of a witness testifying at a hearing be recorded, the chairperson of the board or

panel shall order that the hearing or a part of the hearing or the testimony of a witness be recorded by a person appointed by the board.

(2) If an order is made pursuant to subsection (1), the chairperson of the board of revision or panel may, at the time of making the order or after deciding the appeal, charge against the party who requested the recording or a transcript the costs or a part of the costs of: (

a) recording the hearing, a part of the hearing or the testimony of a witness, including the cost of the services of the person appointed to make a recording; (

b) producing a transcript by a court reporting service of a recording or part of a recording; or (

c) making copies of a recording or a transcript.

(3) The secretary of the board of revision may withhold the recording or transcript until the costs charged pursuant to subsection (2) are paid.

(4) The secretary of the board of revision shall forward a transcript of the recording to the appeal board if: (

a) pursuant to this section, a transcript of the recording or part of a recording is made by a court reporting service of a hearing or of part of a hearing or of the testimony of a witness testifying at a hearing; (

b) the matter that is the subject of the hearing is subsequently appealed to the appeal board; and (

c) the party to the appeal who requests the transcription has paid the costs of producing the transcript. [ 54 ] In GFL Environmental , this Court described the function of a board of revision under the CA in these terms: [54] Section 240(1) gives the Board broad remedial powers, including to either increase or decrease an assessment: Decisions of board of revision 240(1) After hearing an appeal, a board of revision or, if the appeal is heard by a panel, the panel may, as the circumstances require and as the board or panel considers just and expedient: (

a) confirm the assessment; or (

b) change the assessment and direct a revision of the assessment roll accordingly: (

i) subject to subsection (3), by increasing or decreasing the assessment of the subject property; (ii) by changing the liability to taxation or the classification of the subject property; or (iii) by changing both the assessed value of the subject property and its liability to taxation or its classification. [ 55 ] Section 240(2) states that the Board “shall not exercise a power pursuant to subsection (1) except as a result of an appeal ” (emphasis added).

In Prince Albert , Gerwing J.A. described the power to adjust up or down as one that was “necessary” but immediately went on to state that “there is no indication that the specificity of the appeal proceeding is in any way displaced to give the Board authority to correct any assessment on any appeal” (at para 9, emphasis added).

In other words, the power to increase or decrease an assessment must be linked back to the issue raised in the notice of appeal that confers the Board with its jurisdiction. [ 56 ] In [ Sasco ], Cameron J.A. stated that “the function of the Board of Revision is to review the valuation for error by the assessor – error as specifically alleged in the notice of appeal – and, if such error be found to exist, to give effect to it subject to the limitations imposed upon the Board’s remedial powers” (at para 35, emphasis added, citing [ Laing ]). [55] A board of revision, therefore, hears evidence and argument and then makes findings and draws conclusions relevant to the specific allegations of error set out in the notice of appeal brought before it ( MA , ss. 233 and 235 ; CA , ss. 203, 205 and 206; NMA , ss. 254 and 256 ).

This Court has held that a board of revision must approach each appeal with the presumption that the assessment is correct ( Macleod at 189; Omemee at 548; and Estevan Coal at para 31). The board interprets assessment law and assessment practice as it relates to the errors alleged in the notice of appeal, and in some cases makes findings of facts, and then applies its conclusions in that regard to the facts and decides whether the assessment is the product of error ( Corman Park at para 48; MA , s. 240(1) ; CA , s. 210(1); NMA , s. 261(1) ).

As the circumstances require, and as it considers just and expedient, a board may confirm the assessment or “change the assessment and direct a revision of the assessment roll accordingly”: (

i) subject to [ MA , s. 240(3) ; CA, s. 210(3); NMA , s. 261(4) ], by increasing or decreasing the assessment of the subject property; (ii) by changing the liability to taxation or the classification of the subject property; or (iii) by changing both the assessed value of the subject property and its liability to taxation or its classification. ( MA , s. 240(1) ; CA , s. 210(1); NMA , s. 261(1) ) [56] A board of revision may not, however, grant a remedy that varies an assessment unless the appellant has persuaded it that the assessment was founded on a material error such that equity has not been achieved with similar properties ( CP Reit at para 24; Imperial Oil 2016 at para 52; Sasco at para 41; HDL Investments at para 32; Cadillac Fairview at para 37; Estevan Coal at paras 17 and 34; Husk at 77; Laing at 22; MA , s. 240(3) ; CA , s. 210(3); NMA , s. 261(4) ). [ 57 ] In administrative law, a decision-maker that stands in a position akin to an assessor assesses and evaluates the evidence before

it under the governing law and, absent circumstances that satisfy the appropriate standard of review, a reviewing court will not interfere with the decision made. An assessment appeal is an internal statutory appeal, not judicial review, but the role of a board of revision is nonetheless to review an assessment for error. Assessors, however, generally make their decisions in the absence of any fresh input, evidence or argument from taxpayers or the owners of the properties being assessed or, presumably, municipalities.

This means an assessment appeal before a board of revision is often the first opportunity for a person challenging an assessment to put their evidence and their arguments before a tribunal for consideration, i.e., the board of revision. In this light, the statutory appeal framework within which assessment appeals occur is not fully analogous to either judicial review of an administrative tribunal’s decision or appellate review of a judicial decision. Nor does the framework establish a de novo hearing.

The function of a board of revision is most akin to that of a first- level fact-finder and decision-maker as it relates to the facts and assessment principles put in issue. However, given that there is a presumption that an assessment is correct in an appeal to a board of revision, the onus is on the appellant to establish error in the assessment, as has been alleged in the notice of appeal. In this regard, boards of revision apply standards of review when deciding whether an error has occurred and whether an error is material enough to require intervention in the assessment.

Error and the materiality of an error are established by satisfying a board of revision that the applicable standard has been met. 10. What is the Committee’s role? [ 58 ] In City Centre , this Court conducted a thorough review of the relevant legislation, its evolution and prior jurisprudence with a view to determining the Committee’s role and the internal standards it should apply when reviewing a board of revision decision. There is no need to paraphrase the analysis in City Centre , which was: [97] Thus, this Court has consistently found that the Committee fulfils a traditional appellate role.

Instead of rehearing a matter, the Committee reviews the Board’s decision for error . Error has previously been defined as “material error” (see Laing , Estevan Coal , or Sasco ). Once such an error is found, the Committee has the remedial power to correct it. [98] It is clear from the foregoing that the Committee fulfills a traditional appellate role and, therefore, should give deference to the Board on questions of fact. What is not clear is what standard of review the Committee should apply.

As seen in the jurisprudence cited above, the standard of review has been referred to as correctness ( Imperial Oil 2016 ) and material error that so affects the decision of the Board that it cannot stand ( Sasco ). It has also been said that the Committee may correct any error in the assessment ( Laing ). However, this jurisprudence did not canvass the standard of review issue and did not determine the standard of review with respect to questions of fact. It falls to this Court to do so now. [99] The Committee’s role within the assessment regime supports a deferential standard of review on questions of fact.

The Committee is an appellate tribunal charged with hearing and determining appeals. Unlike the Board, it is not a tribunal of first instance. The Board receives evidence and hears witnesses. The Committee reviews the record of the Board and only hears new evidence in narrow circumstances, not unlike the role of an appellate court. Consequently, it fulfills a traditional appellate role in that it determines appeals on the record.

Its function is not to conduct trials de novo , but to review for error and if an error has been found, to correct it. [100] Both tribunals serve specialized roles that have been created by the Legislature.

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

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

Expressing the standard of review in this way is consistent with the approach taken by this Court in Redhead . (Emphasis in original) [ 59 ] With that basic background in place, we turn to consider the standards of review at each level of the assessment appeal regime. B.

What standards of review govern the decision making of boards of revision? [ 60 ] Boards of revision are tasked with ascertaining whether assessments are the product of material error, which requires that they review the assessment field sheet and the written explanation of how the assessment was determined that are filed by the assessor, testimony from the assessor and other evidence adduced in the hearing in the light of the allegations of error set out in the notice of appeal. Since assessments are made on the basis of particular facts and specific principles of assessment law and practice, those facts, the

interpretation of the governing assessment law and practice, or the application of that law and practice to those facts must be challenged by the appellant in the notice of appeal ( MA , s. 225(6) ; CA , s. 197(6); NMA , s. 246(6) ). 1. What standard of review should a board of revision employ with respect to the facts? [ 61 ] The facts that an assessor has relied upon when preparing an assessment are presumed to be correct.

If a relied-upon fact has not been put in issue under a notice of appeal to a board of revision, the fact is not subject to review because the board (and the parties) must accept it as being correct. Moreover, facts that are put in issue in a notice of appeal are not subject to an appellate standard of review per se . When a relied-upon fact is alleged in a notice of appeal to be in error, the existence of error is determined by a board of revision on the civil standard of proof on a balance of probabilities ( Estevan Coal at para 29; Sasco at para 35; CP Reit at para 24; McDougall at para 49).

This requires some explanation. a. What is necessary to establish an error of fact?

[ 62 ] Under the municipal Acts, each assessment must reflect the “facts, conditions and circumstances” affecting the property as of January 1 of each year “as if those facts, conditions and circumstances existed on the applicable base date” ( MA , s. 195(4) ; CA , s. 165(3.1); NMA , s. 218(4) ). [ 63 ] To identify what is necessary to establish an error of fact in a property assessment appeal, it is important to understand that an error of fact could include any error as to the “facts, conditions and circumstances” affecting a property as of January 1 of each year. [ 64 ] It is also necessary to distinguish questions of mixed fact and law from questions of fact.

The explanation that follows has no application to questions of mixed fact and law (which are sometimes referred to as questions involving the exercise of assessor discretion). What follows only addresses in broad terms how a board of revision should handle allegations of purely factual error in an assessment. [ 65 ] It is important to have a thorough appreciation of the relationship between the burden of proof and the presumption that an assessment is correct in the context of an assessment appeal. Two fundamental principles of that relationship are that a board of revision must: (

a) accept as correct all facts used by the assessor in the preparation of an assessment unless they have been put in issue by the appellant in the notice of appeal and, if so challenged, unless they are shown to be in error; and (

b) accept as correct the governing assessment law and practice identified and applied by the assessor in the preparation of an assessment unless put in issue by the appellant in the notice of appeal and, if so challenged, unless they are shown to be in error. [ 66 ] A justification for the presumption of correctness in appeals is that an appellant knows or has the means of knowing the facts and law relevant to the appeal.

However, because property assessment is predicated on mass appraisal, taxpayers may not have ready access to the evidence, or to the principles of assessment law and practice, that might govern the preparation of their assessment (see Estevan Coal at paras 46-49).

Nonetheless, one justification for the maintenance of the presumption of correctness in a mass appraisal regime is that assessors disclose the basis in fact and the assessment law and practice that gave rise to an assessment, i.e., the assessment field sheet and written explanation of how the assessment was determined ( MA , s. 230(4) ; CA , s. 200(4)(b); NMA , s. 251(5) (b)) and, arguably, during discussions conducted prior to the filing of a notice of appeal ( MA , s. 225(6) (d); CA , s. 197(6)(d); NMA , s. 246(6) (d)) or, implicitly, pursuant to a request for that information ( MA , s. 203 ; CA , s. 173; NMA , s. 224 ). [ 67 ] Where disclosure has occurred, whether as part of the appeal process or otherwise, the presumption of correctness is maintained and, when coupled with the burden of proof, it means that boards of revision must accept as correct every fact that an assessor has relied upon and every principle of assessment law and practice that has been employed by the assessor in preparing the assessment unless it has been put in issue by the appellant in the notice of appeal and has been proven to be erroneous ( GFL Environmental at paras 39–61; Corman Park at paras 37–39).

Axiomatically, where the assessor has not disclosed a relied-upon fact, or a principle upon which an assessment was prepared, a taxpayer would be unable to put that fact or the

interpretation or application of that principle in issue under a notice of appeal and, in that circumstance, the taxpayer would have no onus to rebut its correctness in an appeal hearing. This understanding of the appeal regime is supported by the provisions of the municipal Acts that permit an appellant “appearing before” a board of revision to apply to amend the notice of appeal “so as to add a new ground on which it is alleged that error exists” ( MA , s. 239 ; CA , s. 209; NMA , s. 260 ).

That phrasing 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 ( MA , s. 230 ; CA , s. 200; NMA , s. 251 ). [ 68 ] In this context, it is important to understand that, although SAMA is a party to certain assessment appeals ( MA , s. 225(4) ; CA , s. 197(4); NMA , s. 246(4) ) and may itself appeal against some assessments ( MA , s. 225(3) ; CA , s. 197(3); NMA , s. 246(3) ), SAMA qua assessment appraiser is not the respondent in an assessment appeal ( MA , s. 225(6) ; CA , s. 197(6); NMA , s. 246(6) ).

As the municipal Acts provide, a municipality qua respondent has the right to lead evidence to support the facts and assessment law and practice relied upon and disclosed by the assessor, even though the board must take those facts as correct. [ 69 ] If a party, whether a municipality or a taxpayer, intends to rely on a fact, condition or circumstance that was not relied upon by the assessor, or something that has not been admitted or established by evidence adduced by the other party or the assessor, the party seeking to rely on that fact, condition or circumstance must adduce sufficient evidence to support its existence on a balance of probabilities.

This does not, however, involve a shifting of the burden of proof, which always remains with the appellant ( Estevan Coal at para 46; Corman Park at paras 37–39). Even where the assessor is said to have omitted to take account of a fact, condition or circumstance, the burden of proof remains on the appellant because it is appealing against the correctness of the assessment.

An overlooked fact, condition or circumstance affecting a property can have no bearing on the outcome of an assessment appeal until evidence is adduced that is accepted by the board of revision as proof of that fact, condition or circumstance. [ 70 ] An appellant, furthermore, is not required to prove a fact or to lead evidence to support a fact (even though it may be alleged in its notice of appeal) if the alleged fact is no longer in issue in the appeal. The appellant’s initial burden is simply to displace the presumption that the facts relied upon by the assessor are correct.

As such, an appellant may choose for tactical reasons not to adduce evidence addressing different or other facts pleaded in its notice of appeal and instead directly address the facts stated in the assessment field sheet and written explanation of how the assessment was determined that have been put in issue under the notice of appeal. Moreover, an appellant may not be required to lead evidence to disprove a fact on which an assessment is based if neither the assessor nor the respondent have adduced or intend to adduce evidence to establish the existence of that fact.

There may be circumstances where the absence of evidence in relation to a fact put in issue by a notice of appeal is, in and of itself, sufficient for the appellant to discharge the burden of proof.

The relationship between the presumption of correctness and the burden of proof should not require an appellant to prove a negative. [ 71 ] As to the fact-finding process itself, the civil standard of proof (balance of probabilities) requires boards of revision to scrutinise the evidence with care to decide whether it is more likely than not that an alleged fact, condition or circumstance exists (i.e., is true) ( McDougall at para 49). An alleged fact, condition or circumstance is either a fact (i.e., is true) or it is not—there is no middle ground. A board cannot find that something might be a fact.

If a board is left in doubt by the evidence, the doubt is resolved by resorting to the burden of persuasion.

[ 72 ] As explained in Mi-Sask (at paras 30–34), there is a substantive difference between an evidential burden and a persuasive burden. The party that bears the evidential burden of proving a fact must either adduce its own evidence or point to other evidence on the record that is sufficient to raise the issue. However, just because the evidential burden has been satisfied, it does not mean that a board of revision must find a fact in favour of the party that bore that burden.

Rather, if the evidence meets the evidential burden, it means the board can decide the issue in accordance with the civil standard of proof. However, if the party bearing the evidential burden does not meet that burden, that party will have failed to prove the fact in issue. It is for the board to decide what evidence is relevant and can properly be considered in relation to a fact, regardless of its source. [ 73 ] In Mi-Sask , this Court explained the persuasive burden, which in a civil case is to prove a fact on a balance of probabilities.

If the party with the persuasive burden fails to prove to the board of revision that something is on a balance of probabilities a fact, then the party has not met its burden of persuasion. However, the question of which party bears the persuasive burden is generally unimportant. If the board of revision makes a finding of fact, the persuasive burden does not play any

part in the fact-finding process. The burden of persuasion only plays a role in fact-finding when a board cannot reach a conclusion because the evidence is evenly balanced. In those circumstances, the party that bears the persuasive burden will have failed to discharge it and the fact will not be proven ( Mi-Sask at para 24). Properly understood, the burden of persuasion is the tie-breaking mechanism that boards of revision should apply when left with uncertainty about whether a fact exists.

More aptly, if a board of revision is left with uncertainty about whether a fact, condition or circumstance that the assessor has relied upon is erroneous, then the tie goes to the relied-upon fact, condition or circumstance because the appellant has failed to persuade the board that it is erroneous. [ 74 ] In sum, to prove that an alleged fact, condition or circumstance is a fact (i.e., true), there must be evidence adduced in the hearing that is sufficient to satisfy the standard of proof on a balance of probabilities.

If the decision-maker is not satisfied that standard has been met, then the allegation is not a fact for the purposes of the proceeding. If the decision-maker is satisfied, then the allegation is a fact. If the evidence is evenly balanced, then the party who bears the burden of proof has failed to discharge its burden of persuasion and the allegation is not a fact. [ 75 ] While this addresses how boards of revision should make findings of fact, it does not address how they should decide whether an assessment is the product of an error of fact.

As noted, an assessment must reflect the “facts, conditions and circumstances” affecting the property as of January 1 of each year “as if those facts, conditions and circumstances existed on the applicable base date” ( MA , s. 195(4) ; CA , s. 165(3.1); NMA , s. 218(4) ). On th

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