855 Park Street Properties GP Ltd. c/o Hungerford Properties (SK) Applicant/Prospective Appellant (Appellant) v. City of Regina and Saskatchewan, 2022 SKCA 86

Court of Appeal for Saskatchewan Docket: CACV3849 Citation: 855 Park Street Properties GP Ltd. c/o Hungerford Properties (SK) v Regina (City) , 2022 SKCA 86 Date: 2022-07-28 Between: 855 Park Street Properties GP Ltd. c/o Hungerford Properties (SK) Applicant/Prospective Appellant (Appellant) And City of Regina and Saskatchewan Assessment Management Agency Respondents/Prospective Respondents (Respondents) Before: Jackson J.A. (in Chambers) Disposition: Application granted in part Written reasons by: The Honourable Madam Justice Jackson On application from: 2021 SKMB 27 , Regina Application heard: April 21, 2022 Counsel: Allison Graham and Jianna Rieder for the Applicant Steven Dribnenki for the City of Regina No one appearing for Saskatchewan Assessment Management Agency JACKSON J.A.

I. Introduction [ 1 ] This is an application for leave to appeal a decision of the Assessment Appeals Committee [Committee] of the Saskatchewan Municipal Board, namely 855 Park Street Properties GP Ltd. v Regina (City) , 2021 SKMB 27 [ Committee Decision ]. [ 2 ] The Committee Decision upheld a decision of the Regina Board of Revision [Board], which may be cited as 855 Park Street Properties GP Ltd. v Regina (City) (31 July 2020) Regina, Appeal No 2020-28785 (Regina Board of Revision) [ Board Decision ].

The application is made pursuant to the authority of s. 33.1 and s. 33.2 of The Municipal Board Act , SS 1988-89, c M-23.2 [ MBA ]. The property in question is known municipally as 905 Park Street in Regina, Saskatchewan [Subject Property]. [ 3 ] The applicant is 855 Park Street Properties GP Ltd. c/o Hungerford Properties (SK) [Hungerford]. The respondent is the City of Regina [City] and it is the City’s Assessor [Assessor] who assessed the Subject Property. II. Grounds of appeal [ 4 ]

Section 33.1 and s. 33.2 of the MBA , and this Court’s jurisprudence, require that an applicant identify the questions of law or jurisdiction with respect to which leave is sought. To that end, Hungerford has identified the following proposed grounds of appeal (as taken from its draft notice of appeal): 4. … (

a) The Committee erred in law and/or principle by applying a standard of review of reasonableness to questions of law and/or questions of mixed fact and law for which there were extricable questions of law. (

b) The Committee erred in law and/or principle by affirming the Board of Revision’s finding that the Quality Assurance Standards Order established by the Saskatchewan Assessment Management Agency pursuant to s. 163 (f.1)(iv) of The Cities Act did not require the Assessor to include sales that occurred outside of the assessment cycle and which informed the Assessor’s discretion in the calculation of the Assessment to Sale Ratio. (

c) The Committee erred in law and/or principle in its

interpretation and application of the Cost Guide and this Court’s decisions in Consumers Co-operative Refineries Limited v Regina , 2020 SKCA 111 , and GMRI Canada v Regina , 2009 SKCA 145 , in relation to the determination of the Base Land Rate, Standard Parcel Size and Land Size Multiplier Curve. (

d) The Committee erred in law and/or principle by failing to follow its own decisions in relation to the determination of the Base Land Rate, Standard Parcel Size and Land Size Multiplier Curve. (

e) The Committee erred in law and/or principle by failing to find that the Assessor’s failure to follow the Cost Guide , this Court’s decisions and/or the Committee decisions in preparing the assessment constitutes a material error of law or assessment principles and practice by the Assessor. [ 5 ] In its factum and oral argument, Hungerford combined grounds (

c) and (d). For the purposes of these reasons, I will follow the draft notice of appeal. III. Test for leave to appeal

[6] The test to determine whether to grant leave to appeal is now set out in SBLP Town N Country Mall Inc. v Moose Jaw (City),2022 SKCA 10, 465 DLR (4th) 675 [TNC], which recalibrates the test for granting leave to appeal as articulated in Saskatoon (City) vNorth Ridge Development Corporation, 2015 SKCA 13 at para 48, 451 Sask R 265 [North Ridge]. I will not repeat the TNC test here, but Iwill refer to those aspects of it that are of particular relevance to my analysis when I am considering each ground of appeal. IV. Assessing the grounds of appeal [7] I will consider each ground of appeal according to the lettering used earlier in

part II. A. Ground (a): Standard of review for the Committee to apply to questions oflaw [8] Hungerford submits that the Committee selected an incorrect standard of review to apply to questions of law and extricablequestions of law contained within questions of mixed fact and law. [9] The Committee described the standards it intended to apply to the Board Decision in these terms: [10] Based on the Court of Appeal’s direction in City Centre Equities Inc. v Regina (City), 2018 SKCA 43 (paras [98] –[101]), we review the Board’s findings of fact, and of mixed fact and law on a reasonableness standard.

If the findings of fact aresupported by the evidence or are not otherwise unreasonable, this Committee will not interfere with the Board’s factual conclusions. [11] This standard is consistent with the Court of Appeal’s decision in Corman Park (Rural Municipality) v 618421 Saskatchewan Ltd.,2018 SKCA 29 .

In that case, the Court determined the Board was the finder of facts and this Committee sits in review as a trueappellate tribunal on those findings. [10] From this, it is clear that the Committee did not say it was applying a standard of review of correctness to questions of law, butthree points must be made in relation to Hungerford’s argument. [11] First, unlike questions of fact and questions of mixed fact and law, about which there had been some doubt as to the standard ofreview to apply prior to City Centre Equities Inc. v Regina (City), 2018 SKCA 43, 75 MPLR (5th) 179, no one would seriously questionthe Committee’s obligation to look at questions of law though anything but a correctness lens.

The Committee did not mention it as thestandard to apply, but this may be because the complete list of standards was set out for the first time in E.Z. Automotive Ltd. v Regina(City), 2021 SKCA 109, [2022] 4 WWR 55 [E. Z. Automotive]. The Committee Decision was released before E.Z. Automotive. [12] Second, while it is easier for a reviewing court to be sure a tribunal has applied the correct standard if the correct standard ofreview has been correctly applied in the reasons given for decision, form should not be a substitute for substance.

It is not the failure tostate a standard of review that is fatal, rather it is the failure to apply the correct standard of review correctly that is important. [13] Third, a failure to identify a standard of review – as a stand alone ground of appeal – is not a basis upon which to grant leave.Such a ground must be linked to a question of law with respect to which the tribunal had failed to apply the correct standard and such afailure must have had a meaningful impact on the result.

As the following review indicates, the Committee effectively applied a standardof review of correctness to the ground of appeal for which I have refused leave such that the issue does not arise substantively in thisapplication. [14] Thus, I would not grant leave to appeal in relation to ground (a). On its own, it is destined to fail. B. Ground (b): Sales considered outside of the assessment cycle [15] To assess this ground of appeal, it is necessary to review the facts and procedure resulting in the Committee Decision. 1.

Background [16] The Subject Property is 21.954 acres (956,381 square feet) located in Ross Industrial Park, which is located in Neighbourhood[NH] 5203. In the context of urban land, its large size plays a significant role in determining the proper assessment. Other salient featuresof the Subject Property are these: it is vacant land, it is zoned IB-Medium Industrial, and it is classified as being non-regulated. TheAssessor assessed the Subject Property according to the sales comparison approach to value.

The application of this approach resulted inthe development of the Vacant Commercial Land Analysis – Study Area 5203 & 5206, which was applied to the Subject Property. Interms of the end number, the Assessor assessed the Subject Property at $8,973,600. [17] Section 165(5) of The Cities Act, SS 2002, c C-11.1 [CA], provides that “[e]quity in non-regulated property assessments isachieved by applying the market valuation standard so that the assessments bear a fair and just proportion to the market value of similarproperties as of the applicable base date”.

Among other requirements, the market valuation standard [MVS] requires that the assessedvalue of property meet “quality assurance standards [QAS] established by order of [SAMA]” (CA, s. 163(f.1)(iv)) [QAS Order]. [18] As Hungerford indicates, the QAS required the Assessor to achieve a median Assessment to Sale ratio [ASR] of 0.95 to 1.05for all non-residential property in the entire city: Saskatoon (City) v Walmart Canada Corp., 2018 SKCA 2 at para 4. [19] The applicable QAS Order sets out that the median ASR is to be calculated as follows:

The median assessed value to adjusted sale price ratio for a property group for a municipality shall be calculated as follows:

a) Identify all vacant and improved sales used to develop the assessed value for vacant and improved properties in the property group in the municipality ;

b) Determine for each sale in (

a) the assessed value (100%) of the property which reflects the property characteristics on the sale date, and the adjusted sale price;

c) For each sale in (a), divide the assessed value by the adjusted sale price to calculate the assessed value to sale price ratio (ASR);

d) Array the ASRs from lowest to highest; and

e) Select the median ASR of the sales in (a).

For certainty, where sales from outside a municipality are used to develop the assessed value for property in the municipality, such sales shall be used in determining the median assessed value to adjusted sale price ratio for the relevant property group. (Emphasis added) It is also noted that “assessed value” is defined in the QAS Order as follows: “assessed value” means the full (100%) assessment for the property as calculated by the assessment appraiser from the valuation model that has been applied in the municipality[.] [ 20 ] In its submission to the Board, Hungerford argued that the Assessor had erred by using past assessment cycle data from the Subject Property’s NH 5203/5206 in violation of the QAS Order ( Board Decision , at 6).

It was Hungerford’s position that the Assessor had used “65 properties from the 2005, 2009 and 2013 assessment cycles … to inform its discretion and to confirm the size stratification of 40 acres” (at 8). According to the Board Decision , Hungerford asserted “that if the sales are reliable as time adjusted, then the Assessor should include them in the Study Area sales analysis to determine a proper LSM up to 40 acres” (at 8). 2.

Board Decision [ 21 ] In response to this aspect of Hungerford’s submissions, the Board made these findings: [54] The Appellant asserted that the Assessor erred in his use of historical sales data, by not including the data in the final calculation of the median ASR, and improperly applying the Assessor’s discretion. The Panel understands the historical data used by the Assessor was to inform his discretion on the LSM applied to the subject property, not in the determination and calculation of the applied model.

The Appellant has claimed that the Assessor used 65 sales from prior assessment cycles to inform his discretion to justify the 40 acre stratification applied to the subject NH and the LSM of 105 percent.

The Panel accepts, based on his experience, knowledge and testimony, that prior analysis of previous assessment cycles shows comparability of the size of the SP in NH 5203 is reliable to at least 38 acres. [55] The Panel determined that the Minister’s Order to establish Quality Assurance Standards applies to the statistical confirmation phase of the assessment and not in the determination of the land analysis or land valuation model.

The Panel reviewed the Appellant’s assertion that the Minister’s Order requires the Assessor to provide all the sales used by the Assessor to inform his discretion regarding the land analysis, in particular for NH 5203.

The Panel believes the Minister’s Order references all those sales used in the current assessment cycle and does not apply to those the Assessor may use in applying his discretion. [56] Under the Appellant’s application of the 2008 SKCA 158 Bison Properties Ltd. decision, the Panel could not find an error in the Assessor’s compliance with the Minister’s Quality Assurance Standards Order, and therefore was not precluded from using Assessor discretion.

In addition, the Panel supports the Assessor’s assertion that you cannot just add to the inventory by adding time adjusted sales because the trend is not in the sales data, but rather the trend is the LSM. The Panel accepts the Assessor’s application of his discretions as compliant with Minister’s Order. [57] The Panel could find no evidence of any error in the Assessor’s use of data from past assessment cycles to inform his discretion regarding the determination of the LSM for NH 5203. (Emphasis added) 3.

Committee Decision [ 22 ] On appeal to the Committee, Hungerford reiterated its arguments regarding the ASR, saying the following: (

a) the Board “ignored the wording outlined in the Minister’s Order by taking an extremely narrow definition of assessment” ( Committee Decision at para 20); and (b) “the use of historical data by the Assessor in establishing trends without disclosure is offensive to the mandated SAMA Quality Assurance Board Order” ( Committee Decision at para 13). [ 23 ] In dismissing Hungerford’s appeal on this point, the essential part of the Committee’s reasoning is as follows: [20] Altus argued that the Board decision ignored the wording outlined in the Minister’s Order by taking an extremely narrow definition of assessment.

Altus cited no authority for the proposition that sales data used by the Assessor from previous cycles to inform the Assessor’s discretion should be incorporated into the Minister’s Order. Rather, the argument advanced suggested the Board’s ruling would lead to an inequitable system and unrestricted discretion on the part of the Assessor.

[21] The Assessor argued that sales from past cycles were not used to develop the assessed value. All sales used to develop the landmodel were included in the calculation compliant with the Minister’s Order. The Assessor relied only on sales from the existingassessment cycle. The Assessor referenced Bison Properties Limited v Regina (City), 2008 SKCA 158 as supportive of theposition advanced. [22] We agree with the Board’s conclusion on this point.

Although the issue proceeded in a rather untidy fashion, given Altus’sconcession that this issue was moot, the Board understood the nature of the argument advanced, referenced appropriate case authority andcame to a reasonable conclusion. We dismiss this ground of appeal. 4. Analysis [24] Hungerford asserts that the Committee applied a “reasonableness” analysis to what is essentially a question of law, i.e., what ismeant by “assessed value” in the QAS Order that directs the Assessor to “identify all vacant and improved sales used to develop theassessed value”?

In other words, Hungerford asks whether the QAS is directed “to the statistical confirmation phase of the assessment andnot in the determination of the land analysis or land valuation model”? [25] The Committee could have been more clear in its analysis of the Board Decision on this point, but as I mentioned earlier, thisCourt has only recently re-stated the standards of review to be applied by the Committee to decisions of boards of revision (see E.Z.Automotive and most recently in Affinity Holdings Ltd. v Shaunavon (Town), 2022 SKCA 83). Understandably, prior to E.Z.

Automotive,the Committee could be expected to express its decision finding no error in reasonableness terms. However, significantly, the Committeein this case nonetheless used common correctness language when it wrote in paragraph 22 that it “agree[d] with the Board’s conclusion onthis point”.

An expression of agreement can be one way of performing correctness review, i.e., by adopting as the reviewing court’s ownanalysis that of the tribunal whose decision is being reviewed. [26] In this case, I find that what the Committee intended was to find no error in the Board’s determination that “the Minister’sOrder to establish Quality Assurance Standards applies to the statistical confirmation phase of the assessment and not in the determinationof the land analysis or land valuation model” (Board Decision at para 55). [27] With that by way of my understanding of the Committee Decision, the issue is whether leave should be granted in relation tothis ground of appeal: (

b) The Committee erred in law and/or principle by affirming the Board of Revision’s finding that the Quality Assurance Standards Orderestablished by the Saskatchewan Assessment Management Agency pursuant to s. 163(f.1)(iv) of The Cities Act did not require theAssessor to include sales that occurred outside of the assessment cycle and which informed the Assessor’s discretion in the calculation ofthe Assessment to Sale Ratio. [28] Behind this proposed ground are two assertions: (

a) that the Assessor included sales outside of the assessment cycle in the calculation of the ASR; and (

b) that it is contrary to law for the Assessor to rely on historical sales data to inform and justify its valuation method, withoutincluding those sales in its calculation of the median ASR. [29] As a preliminary point, it is not apparent to me that in the assessment appeal context it is appropriate to expand the Court’sjurisdiction to include the concept of “error in principle”.

The distinction between error in law or error in principle has some meaningwhen reviewing the exercise of a discretionary decision-making power, but here the Court’s jurisdiction is limited to granting leave toappeal on a “question of law or jurisdiction”. [30] On the question of substance, there does not appear to be a question of law or, if there is one, that leave should be granted inrelation to it. The Board found that the Assessor did not use sales that occurred outside of the assessment cycle to inform its discretion inthe calculation of the ASR.

Rather, the Assessor looked to the past sales (outside the cycle) to verify that the land size multiplier [LSM](based on assessment cycle sales) was not inconsistent with historical LSMs. It was a check that could have led to further refinement of themodel but did not. This is a practice that was sanctioned in Imperial Oil Limited v Regina (City), 2016 SKCA 107 at para 18, 408 DLR(4th) 46. See also Bison Properties Limited v Regina (City), 2008 SKCA 158 at para 16, 314 Sask R 259. [31] Further, there is an aspect of this part of Hungerford’s submissions that is clouded by a procedural issue.

As the Committeeindicated “the issue proceeded in a rather untidy fashion, given Altus’s concession that this issue was moot” (at para 22). The Boardexplained the origin of this problem as follows at pages 2–3: 5.

At paragraph [3] of the 5 day submission, the Appellant requested the Board to order the Respondent to produce the list of sales used tocalculate the municipal median ASR, specifically the list of sales used to develop the property group for vacant commercial land studyarea 5203S, including the 65 properties from the 2005, 2009 and 2013 assessment cycles that were used to inform the Assessor’sdiscretion. The Appellant argued that in the decision 2008 SKCA 158 Bison Properties Ltd. v.

Regina (City), the reason the production request wasdenied was that the Appellant had not identified an error in law, and as the Appellant has identified an error in the subject, the requestshould be ordered. The Appellant also advised that, with the introduction of the Market Valuation Standard, all sales data used in theassessment must be provided in accordance with the Minister’s Quality Assurance Standards Order. The Respondent provided that all thesales used in their land analysis model were from 2017 and that this matter had been addressed in 2005 [sic] SKCA 158 Bison PropertiesLtd.

The Respondent advised that there were no provisions in the Manual for using sales from previous assessment cycles.

Following arguments and cross-examination by both parties, the Panel recessed to discuss the request and provided the following decision in response to the Appellant’s request. The Panel determination was that the Assessor confirmed that all sales data used in calculations for this appeal have been provided in the docket. The Appellant withdrew the request for the 126 sales used in previous cycles. (Emphasis added) [ 32 ] Thus, the Board held that all sales data “used in calculations for this appeal” had been provided.

This was the basis upon which Hungerford withdrew its request for disclosure, but notwithstanding the Board’s decision to refuse disclosure, it nonetheless proceeded to address in full reasons why it “could find no evidence of any error in the Assessor’s use of data from past assessment cycles to inform his discretion regarding the determination of the LSM for NH 5203” (at para 57).

It is this aspect of the Board’s reasoning that gives rise to the proposed ground of appeal. [ 33 ] On appeal to the Committee, Hungerford indicated that it had not withdrawn its request for production but that it was “a moot point when the assessor confirmed that the sales they used were not the same sales that established the trends, which was then put in through their -- or applied through their discretion” ( Committee Decision at para 12).

Nonetheless, over the City’s objection, the Committee considered whether the Assessor had contravened the legislation as Hungerford alleged in its notice of appeal— notwithstanding Hungerford’s seeming acceptance that the Assessor had used data from past assessment cycles for one purpose only. However, if leave were to be granted, this Court would have to determine the effect of Hungerford’s concession on the Board’s and on the Committee’s analysis.

To be clear, it is not Hungerford’s withdrawal or not of its request for disclosure that is important but rather its concession regarding how the Assessor used the sales in question that prompts my concern. [ 34 ] When I view these reasons through the TNC lens to decide whether to grant leave, I find that I do not have a meaningful doubt about the correctness of the Committee’s decision.

I also have concerns that the appeal is destined to fail having regard for the way in which the issue ultimately came to be decided by the Board and by the Committee. [ 35 ] For these reasons then, I have decided that leave should not be granted in relation to ground (b). C. Grounds (c), (

d) and (e): Failure to follow past decisions [ 36 ] The factual matrix for this application for leave to appeal is similar to that in Consumers Co-operative Refineries Limited c/o Federated Co-operatives Limited (SK) v Regina (City) , 2021 SKCA 166 [ CCRL 2021 Chambers ]. In CCRL 2021 Chambers , I granted leave with respect to a ground of appeal cast in these terms: The Committee erred in its

interpretation and application of the Cost Guide , a number of the Committee’s decisions, and this Court’s decisions in Consumers Co-operative Refineries Limited v Regina (City) , 2020 SKCA 111 , and GMRI Canada Inc. v Saskatoon (City) , 2009 SKCA 145 , in relation to the determination of the Base Land Rate, Standard Parcel Size and Land Size Multiplier curve. [ 37 ] This ground of appeal from CCRL 2021 Chambers encompasses Hungerford’s grounds of appeal (

c) and (d), which I repeat as follows: (

c) The Committee erred in law and/or principle in its

interpretation and application of the Cost Guide and this Court’s decisions in Consumers Co-operative Refineries Limited v Regina , 2020 SKCA 111 , and GMRI Canada v Regina , 2009 SKCA 145 , in relation to the determination of the Base Land Rate, Standard Parcel Size and Land Size Multiplier Curve. (

d) The Committee erred in law and/or principle by failing to follow its own decisions in relation to the determination of the Base Land Rate, Standard Parcel Size and Land Size Multiplier Curve. [ 38 ] Hungerford adds a fifth ground of appeal in its draft notice of appeal, which I repeat: (

e) The Committee erred in law and/or principle by failing to find that the Assessor’s failure to follow the Cost Guide , this Court’s decisions and/or the Committee decisions in preparing the assessment constitutes a material error of law or assessment principles and practice by the Assessor. [ 39 ] CCRL 2021 Chambers was issued before TNC was released. Thus, it was decided according to the test for leave as set out in North Ridge .

Having regard for the differences between TNC and North Ridge , the City submits that it is now more difficult to obtain leave to appeal such that leave should be refused in this case even though leave had been granted in CCRL 2021 Chambers with respect to the same issue that is covered by grounds (

c) and (d). The City also argues that the facts and the parties’ positions differ from what was presented to the Committee in CCRL 2021 Chambers . Finally, the City asserts that the resolution of this question will not have a material impact on the bottom line of the Committee’s decision even if error is found.

It makes this point because both the Board and the Committee found that equity had been achieved, which is the ultimate litmus test to determine whether a tribunal or this Court should intervene. [ 40 ] I understand the City’s argument with respect to the change in the test for leave, but I would indicate that, as the Court stated in TNC , leave is not granted only for the purpose of resolving individual appeals. There are occasions when the Court will grant leave to settle a recurring question that appears to have created difficulty. This may be one of those cases, as I identified in CCRL 2021 Chambers.

I am also prepared to grant leave because CCRL 2021 Chambers and this proposed appeal are essentially companion appeals notwithstanding the differences in the underlying facts. The panel hearing the appeal will be able to answer the question of law identified and apply it appropriately. [ 41 ] That leaves for determination how the ground of appeal should be formulated. On this question, grounds (

c) and (

d) are captured completely by the ground from CCRL 2021 Chambers . Thus, I see no basis not to follow the wording of the ground contained in CCRL 2021 Chambers and I take this to be the position of Hungerford as well.

[ 42 ] I view ground (

e) differently. It asks the Court to review the Committee’s review of the assessor’s decision . The Committee reviews decisions of boards of revision and only indirectly reviews an assessor’s decision by asking whether the board erred by finding (or not) that such and such an error had been made. It is the Committee’s decision that this Court reviews. If this ground were to be re- formulated so as to direct the Court’s attention to the Committee’s decision, it would not add anything more to what is already apparent in grounds (

c) and (d). [ 43 ] In conclusion on this point, I would grant leave to appeal with respect to the grounds of appeal (

c) and (

d) in the same terms that I used in CCRL 2021 Chambers but not in relation to ground (e). V. Conclusion [ 44 ] Leave to appeal is granted in relation to the following ground of appeal: The Committee erred in its

interpretation and application of the Cost Guide , a number of the Committee’s decisions, and this Court’s decisions in Consumers Co-operative Refineries Limited v Regina (City) , 2020 SKCA 111 , and GMRI Canada Inc. v Saskatoon (City) , 2009 SKCA 145 , in relation to the determination of the Base Land Rate, Standard Parcel Size and Land Size Multiplier curve. [ 45 ] In all other respects, the application for leave to appeal is dismissed. [ 46 ] Costs are left to the division of the Court hearing the appeal. “Jackson J.A.” Jackson J.A.