Brandt Properties Ltd. Appellant (Appellant) v. Rural Municipality of Sherwood No. 159 and Saskatchewan Assessment, 2023 SKCA 4

Court of Appeal for Saskatchewan Docket: CACV3683 Citation: Brandt Properties Ltd. v Sherwood (Rural Municipality) , 2023 SKCA 4 Date: 2023-01-06 Between: Brandt Properties Ltd. Appellant (Appellant) And Rural Municipality of Sherwood No. 159 and Saskatchewan Assessment Management Agency Respondents (Respondents) Before: Richards C.J.S., Whitmore and Tholl JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Chief Justice Richards In concurrence: The Honourable Mr. Justice Whitmore The Honourable Mr.

Justice Tholl On appeal from: 2020 SKMB 33 , Regina Appeal heard: June 14, 2022 Counsel: Leonard Andrychuk, K.C., and Allison Graham for the Appellants Kim Bodnarchuk for the Respondents Richards C.J.S. I. INTRODUCTION [ 1 ] This appeal concerns the property tax assessments for a number of commercial properties in the Rural Municipality of Sherwood [RM]. The property owners appealed their assessments to the Board of Revision [Board], advancing various arguments about errors allegedly made by the Saskatchewan Assessment Management Agency [SAMA] in its work.

The Board dismissed the appeal. [ 2 ] The owners then appealed to the Assessment Appeals Committee of the Saskatchewan Municipal Board [Committee]. They contended that the Board had applied the wrong standard of review, failed to come to grips with their grounds of appeal and ignored or misconstrued certain expert evidence in the course of improperly defaulting to a previous decision with respect to their properties. The Committee dismissed the appeals. [ 3 ] As explained below, I conclude that the Committee made significant errors in proceeding as it did.

First, it wrongly affirmed the standard of review that had been employed by the Board. Second, it improperly endorsed the Board’s treatment of the expert evidence that had been tendered in the proceedings before it. Third, the Committee failed to act in response to an error that it found in the Board’s handling of some of the expert evidence. [ 4 ] In the end, I would set aside the Committee’s decision and remit this matter to it for reconsideration. II. BACKGROUND A. The properties and the parties [ 5 ] The 21 properties in issue are located in the area surrounding the City of Regina.

They include such things as warehouses, offices and industrial developments. [ 6 ] The same tax agent represented the owners of all of these properties in their appeals to the Board and advanced identical arguments on their behalf. It was therefore agreed that the evidence and argument presented in a lead appeal would apply to all of the properties in issue and that the result in the lead appeal would be binding on all of the owners represented by the tax agent. [ 7 ] A property owned by JEL Holdings Inc. was chosen to be the subject of the lead appeal.

However, we are advised that JEL Holdings Inc. is not participating in the proceedings before the Court and that it has been agreed between the property owners on the one hand, and the RM and SAMA on the other, that Brandt Properties Ltd. [Brandt], the owner of several of the properties in issue, should be substituted for JEL Holdings Inc. as the named appellant. Given that the same evidence and argument applies to the appeals in relation to each of the properties under consideration here, this can be done without affecting the substance of the appeal. Accordingly, that substitution will be made.

In order to avoid confusion, I will proceed as if Brandt has been the lead appellant from the beginning and will make no further reference to JEL Holdings Inc. B. SAMA’s approach [ 8 ] SAMA’s assessment model for 2019 used what is known as the cost approach. This involved developing one model to assess the land [Land Model] and another model to assess improvements [Improvement Model].

[ 9 ] Land value was determined by using arm’s length sales of vacant similar properties to arrive at a unit price. When using this approach, sales may need to be adjusted for time if trend analysis reveals that prices were increasing over the relevant time period. Further, additional adjustments may have to be made for size if the data establishes that the sale price per unit of land decreases above a certain parcel size. [ 10 ] In this case, SAMA divided the RM into several neighbourhoods. It determined the base land rate separately for each of neighbourhoods 101, 301, 302, 303, 304 and 305.

In broad terms, those neighbourhoods can be described as follows: 101 – the majority of the RM except the areas found in the other neighbourhoods; 301 – all front row parcels in the Sherwood industrial subdivision; 302 – all back row parcels in the Sherwood industrial subdivision and front row highway commercial properties on the north side of Highway #1 east of Regina and east of Tower Road; 303 – all back row commercial parcels along Highway #1 east of Regina and east of Tower Road; 304 – all commercial parcels along Highway #6 south of Regina and some parcels along Highway #1; and 305 – industrial zoned land with some exceptions.

But, to determine whether sale prices needed to be adjusted for time, SAMA grouped all of these neighbourhoods together, using the 29 sales that had occurred in them. Six of those sales involved properties located in neighbourhood 101. Based on its consideration of these 29 sales, SAMA decided not to apply a time adjustment. [ 11 ] SAMA determined the value of improvements by using replacement cost new less depreciation and calculating a market adjustment factor [MAF] to account for economic obsolescence and other losses or gains in value. To be used for this purpose, sales must be arm’s length in nature.

SAMA excluded the 2014 sale of 1850 Industrial Drive [Industrial Sale] from the MAF determination on the basis that it had not been arm’s length. C. The Board decision [ 12 ] By way of context, it is important to know that the assessments of the properties in issue had been unsuccessfully appealed in 2018. The 2018 appeal had gone to both the Board and to the Committee. [ 13 ] Brandt’s basic arguments for 2019 tracked those that it had made in 2018.

As relevant here, the first argument was that neighbourhood 101 was different than the other neighbourhoods covered by the Land Model and, once the neighbourhood 101 sales were removed from consideration as they should have been, it was apparent that a time adjustment to the remaining sales was required. To make its point, Brandt relied on the large size of the properties sold in neighbourhood 101 relative to those sold in the other neighbourhoods and did some of its own statistical analysis. It supported all of this with statistical work prepared by William Levis, an assessment expert.

Brandt’s second argument was that the Industrial Sale had been arm’s length and, hence, should not have been excluded from SAMA’s MAF analysis. To buttress this argument, Brandt presented the evidence of a local real estate agent, Peter Lawrek. The net effect of Brandt’s arguments, if they had been accepted, would have been a reduction in the assessed value of the properties in issue. [ 14 ] The Board dismissed Brandt’s appeal with brief reasons.

It began, at paragraph 2, by saying its decision would be based on a “standard of reasonableness” which it explained as requiring it to “adopt the perspective and measurement of a ‘reasonable person’” (at para 3). The Board then outlined the positions of Brandt and SAMA. [ 15 ] In the five-paragraph “Analysis”

section of its decision, the Board said that it would not “repeat its analysis of the 2018 appeals” but, instead, would focus on the testimony of Messrs. Lawrek and Levis. That evidence had not been before the Board in 2018. [ 16 ] The Board characterized Mr. Lawrek’s evidence as “primarily an opinion coming from a single property appraisal perspective” and, hence, as something to which “little or no weight” could be attached (at para 29). As for the testimony of Mr. Levis, the Board appeared to dismiss it on the basis that “statistics do not trump similarity” and because Mr.

Levis could not comment on the similarity of the neighbourhoods involved “outside of the raw data” (at para 31). In the end, the Board saw Mr. Levis as having developed an “excellent model” that supported Brandt’s position but found it was no more than an alternate method of valuation and not something that proved an assessment error (at para 33). D. The Committee decision [ 17 ] Brandt appealed to the Committee.

Its grounds included arguments that the Board had erred by applying an improper standard of review, by misapprehending the nature and purpose of the Levis and Lawrek testimony, and by deferring to the decision it had made in 2018. [ 18 ] The Committee dismissed Brandt’s appeal. I will examine its reasoning in detail in the “Analysis”

section of this decision. For present purposes, it is enough to say the Committee held that the Board had not erred in its identification and application of the standard of review or erred in its treatment of Mr. Levis’s evidence. It found that the Board had missed the mark with respect to Mr. Lawrek’s evidence but that the Board’s conclusion in relation to the Industrial Sale should nonetheless stand. III. THE ISSUES [ 19 ] Brandt was granted leave to appeal on the following questions: (

a) Did the Committee correctly find that the Board had selected and applied the correct standards of review of an assessment? (

b) Did the Committee correctly interpret and apply Harvard Property Management Inc. v Saskatoon (City) , 2017 SKCA 34 [ Harvard ], regarding the relevance of statistical evidence as a factor in determining comparability? (

c) Did the Committee deprive Brandt of its right of appeal by failing to remedy errors of law it found in the Board decision or by failing to address a ground of appeal before it?

IV. ANALYSIS [ 20 ] I will consider each of Brandt’s submissions in turn. A.

Standard of review [ 21 ] The first line of argument advanced by Brandt is that the Committee erred by endorsing the Board’s erroneous approach to the standard of review that it was required to apply in considering the assessment and, relatedly, erred by failing to apply Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 , [2019] 4 SCR 653 [ Vavilov ], when addressing the issue of reasonableness. [ 22 ] It is useful to begin the consideration of this issue by noting this Court’s recent decision in Affinity Holdings Ltd. v Shaunavon (Town) , 2022 SKCA 83 [ Affinity Holdings ].

That case clarified the approach that boards of revision are to take in deciding assessment appeals. The Court explained as follows: (a) “[A]n error of fact will arise where a fact, condition or circumstance that the assessor has found to have affected the property has been disproved or has been proven not to have affected the property as of January 1 of the year in question.

That is, where a board makes a finding of fact that differs from the assessor’s apprehension of the facts, conditions and circumstances affecting a property, then the board has found error in the assessment” (at para 75). (b) “Questions of assessment law are determined by boards of revision on the standard of correctness” (at para 77). (c) “Questions of assessment practice are determined by boards of revision on the standard of correctness” (at para 81). (d) “Questions of mixed fact and assessment law are determined by boards of revision on the standard of reasonableness” (at para 86). (e) “Questions of mixed fact and assessment practice are determined by boards of revision on the standard of reasonableness” (at para 87). [ 23 ] The Court went on to confirm that the Supreme Court of Canada’s decision in Vavilov is applicable when a board of revision considers the issue of reasonableness.

It said this: [94] A reasonable decision has two aspects in this context. It is a decision that is (

a) based on an internally coherent and rational chain of analysis; and (

b) justified in relation to the facts, circumstances and conditions affecting the property in question as well as the assessment law and practice that constrains the assessor (see Laing at para 28). The reasonableness standard requires that a board of revision defer to a decision that has those characteristics. To be clear, the assessor’s decision must be justified by the assessor’s reasoning process as disclosed pursuant to MA , s. 230(4), CA , s. 200(4) or NMA , s. 251(5), on the record, or through testimony, as the case may be.

Even though a decision may seem reasonable on the assessor’s explanation of it, it may not be so once the other evidence adduced before the board is taken into account. (Emphasis in original) [ 24 ] With that background, I turn to the particulars of how the standard of review issue was dealt with in this case. The Board set out its approach at the front end of its decision, under the heading “The Law”. There, at paragraph 2, the Board said that, because the appeal involved “a mix of fact and law”, its decision would be “based on a standard of reasonableness” in accordance with this Court’s decision in Gary L.

Redhead Holdings Ltd. v Swift Current (Rural Municipality) , 2017 SKCA 47 , 415 DLR (4th) 218 [ Redhead ]. The Board then proceeded, at paragraph 3, to say that the standard of reasonableness required it to “adopt the perspective and measurement of a ‘reasonable person’” and that this approach had been “stated in numerous Saskatchewan Court of Appeal and Canadian Supreme Court decisions”.

It relied, in particular, on the following passage from Canadian Broadcasting Corporation v Whatcott , 2016 SKCA 17 at para 8 , 395 DLR (4th) 278 [ Whatcott ]: … In this analysis, it says the reasonable person is “of fair, average intelligence, who is thoughtful and informed … and who, in [his or her] evaluation of the imputation, entertain[s] a sense of justice and appl[ies] moral and social standards reflecting the views of society generally” ( Brown at 5-77 to 5-78). … [ 25 ] There can be no doubt that the Board erred in law in framing the standard of review as it did.

First, neither Redhead nor Tervita Corporation v Canada (Commissioner of Competition) , 2015 SCC 3 , [2015] 1 SCR 161, referenced in Redhead , address the standard of review to be applied by a board of review. They speak to the standard of review applicable to questions of law or jurisdiction raised in appeals to this Court from decisions of the Committee. Second, the reasonableness standard applicable in the context of administrative law does not turn on the perspective of a “reasonable person”. Third, the Board’s reference to this Court’s decision in Whatcott was misplaced.

That case is about defamation and, in any event, the passage relied on by the Board is not a statement of the Court’s position. It is a

summary of the argument advanced by one of the parties. Moreover, of course, the Board’s approach was out of line with Affinity Holdings , a decision which, I acknowledge, was released well after the Committee made its ruling. [ 26 ] SAMA acknowledges the errors made by the Board in setting out the standard of review, but it attempts to establish that those errors were of no meaningful effect.

In this regard, it suggests that, while the Board may have misstated the nature of the reasonableness standard in the part of its decision headed “The Law”, the Board reoriented itself, and got itself back on track, before turning to the analysis that led to its decision.

On this front, SAMA points to paragraph 5 of the Board’s decision where, under the heading “Role of the Board”, it said, “The role of the Board of Revision (the Board) is to consider the facts, evidence and testimony presented to the Board during an assessment appeal hearing to determine if the Appellant provides sufficient evidence or compelling reasons to prove an error has been made by the Appraiser”. [ 27 ] SAMA’s line of argument is misplaced. I say that because the Board’s reference to the evidence or reasons necessary “to prove

an error” inevitably engages its previous description of the applicable standard of review. In other words, whether or not there was an “error” cannot be disentangled from the question of the applicable standard of review and, as noted, the Board clearly misstated that standard. It is readily apparent that the Board applied a “reasonable person” approach in deciding whether SAMA had made a reversible error in its determination of the assessed values in issue. [ 28 ] I come, therefore, to the proceedings before the Committee.

The first ground of Brandt’s notice of appeal to the Committee alleged that the Board had erred in law by applying a reasonableness standard and by applying a test drawn from the law of defamation. It argued that the question of whether the Board had misconstrued the burden a taxpayer had to meet in an assessment appeal is a question of law reviewable by the Committee on the standard of correctness and that the Board had not understood the legal test it was required to apply. [ 29 ] The Committee did not respond to these arguments in any direct or express way. Rather, it observed that the Board’s analysis of Mr.

Levis’s testimony was “logical and based on the evidence” (at para 25). It also said that, while the Board had “missed the mark” with respect to Mr. Lawrek’s evidence, that evidence had been directly contradicted by SAMA and, as a result, “[t]he Board had evidence to find in favour of SAMA on the [Industrial Sale]” (at para 25). In the end, the Committee concluded, at paragraph 26 of its decision, that “[w]e find that the reasonableness standard applies in this instance and that the Board properly applied that standard”. [ 30 ] Nothing more need be said on this issue.

It is readily apparent that the Committee erred in law when it found the Board had properly applied the reasonableness standard of review. The Board’s view of reasonableness was wholly ill-founded regardless of what was said in Affinity Holdings but, moreover, the Board’s approach to reasonableness is also at odds with what was said in that decision. B. The statistical evidence [ 31 ] Brandt’s second argument is rooted in how the Board dealt with the statistical evidence presented by Mr. Levis. [ 32 ] As noted above, Mr.

Levis, an expert in the assessment field, was called by Brandt to give evidence at the Board hearing. Brandt brought him forward in order to give testimony in support of its argument that a time adjustment should be applied in valuing the land aspect of the properties in issue. SAMA had not made a time adjustment because the 29 sales it examined had indicated, in aggregate, a slightly falling market. Mr. Levis disaggregated the 29 sales.

His analysis showed a rather dramatically falling market in neighbourhood 101, based on the six sales from that neighbourhood, and a rising market for the neighbourhoods outside of neighbourhood 101, given the 23 sales from those areas. In his written report, Mr. Levis concluded by saying, “[I]t appears that neighbourhood 101 is in a distinctly different market from the other neighbourhoods”.

Brandt used his evidence, therefore, to bolster its argument that the neighbourhood 101 sales should be either substratified or removed from the analysis and a time adjustment made. [ 33 ] The Board’s analysis of the Levis testimony was limited to two paragraphs. It appears to have given no weight to his evidence because (

a) statistical testing does not trump similarity and Mr. Levis’s comments on similarity were limited to raw data, and (

b) while Mr. Levis had developed “an excellent model”, it was an “alternate method and does not prove error” (at para 33). The Board wrote as follows: [31] The Board is aware of previous Court of Appeal decisions which state “statistics do not trump similarity”. Mr. Levis could not comment on the similarity of the two neighborhoods outside of the raw data. Similarity is based on many factors.

Historical sales may suggest two neighborhoods are different, however location, zoning, type of use, and numerous other factors also play important roles when identifying similarity between properties or neighborhoods. … [33] The Board accepts the fact that Mr. Levis has developed an excellent model which supports the Appellant’s arguments. This, however, constitutes an alternate method and does not prove an error by the Appraiser. [ 34 ] In its appeal to the Committee, Brandt’s notice of appeal included grounds that the Board had misinterpreted Harvard and had erred by treating Mr.

Levis’s evidence as an “alternate model”. The Committee dealt with the issues concerning Mr. Levis’s evidence by reasoning as follows: [32] The Board summarized Mr. Levis’s testimony, but ultimately discounted it. [Brandt] give [ sic ] him the sales data and he was asked to provide his own analysis. Mr. Levis acknowledged that his analysis was done from a purely statistical perspective, without knowledge of market conditions. Mr. Levis agreed that he had not reviewed SAMA’s analysis and could not state whether SAMA’s model was incorrect.

Having stated this, the Board found at paragraph [33] of its decision that Mr. Levis’s analysis “… does not prove an error by the Appraiser.” We cannot take issue with the Board’s finding. It is reasonable and flows from the evidence. [ 35 ] Brandt spends considerable time in its submissions canvassing the extent to which it says statistical testing is mandated by The Municipalities Act , SS 2005, c M-36.1 [ Act ], in relation to both the requirements of the market valuation standard and equity and how such testing can bear on the issue of whether an assessor has acted reasonably.

However, the question before the Court, as per the order granting leave to appeal, is narrower than all of that. The question is whether the Committee correctly interpreted and applied Harvard regarding the relevance of statistical evidence as a factor in determining comparability. [ 36 ] I agree with Brandt that the Board erred in its decision-making. Although the wording of its reasons may not be entirely clear, I take it to have found that Mr.

Levis’s evidence should not be given any effect because it was directed at the issue of the similarity between neighbourhood 101 and the other neighbourhoods and statistics have no place in any such analysis. That sort of approach was, as argued by Brandt, a misreading of Harvard . [ 37 ] Harvard dealt with a situation where the Committee had ignored the comparability of properties used in the determination of a capitalization rate and had simply defaulted to statistical testing to conclude that the property group in issue was appropriate.

In finding that the Committee had erred, the Court said that statistical testing cannot establish comparability in the first instance. It did not say that statistical testing could play no role in the assessor’s testing of the appropriate property groupings, as required by the Act or otherwise, or

that such testing could not be used by a property owner in an effort to demonstrate error in an assessment. The Court said this: [25] The approach taken by the Committee in this case put the cart before the horse. Statistics alone do not determine comparability or the strength of arguments in relation to comparability. In developing a capitalization rate, an assessor must begin by selecting the properties to be considered in the analysis. This must be done by having resort to factors properly bearing on comparability.

When this bridge has been successfully crossed, and a group of comparable properties identified, statistical analyses can then be used to determine the quality of the stratifications in issue. [ 38 ] It is readily apparent, therefore, that the Board erred in law in its treatment of Mr.

Levis’s evidence and that the Committee, in turn, erred in law by failing to recognize the flaw in the Board’s approach. [ 39 ] I should note in closing on this point that SAMA argues in its factum that, in light of the whole of the evidence, the Committee made no ultimate error by not excluding neighbourhood 101 sales from its analysis. That may or may not be correct but it is of little consequence here because there can be no doubt that the Board’s view of Mr. Levis’s evidence impacted its assessment of the comparability issue and had an effect on its bottom-line conclusions.

It would not be appropriate for this Court to wade into the arcane detail of the assessment to determine if there might be some alternate way to sustain SAMA’s use of the neighbourhood 101 sales. C. Deprivation of right of appeal [ 40 ] Brandt’s third line of argument, as per the order granting it leave to appeal, is whether the Committee erred by depriving it of its right of appeal by failing to remedy errors of law that it found in the Board’s decision or by failing to address a ground of appeal.

The first wing of this submission, the alleged failure to remedy errors of law, concerns the Committee’s handling of the evidence of Mr. Lawrek. The second wing, the alleged failure to deal with certain of Brandt’s arguments, relates to how the Committee handled, or failed to handle, Brandt’s argument to the effect that the Board had erred by defaulting to its 2018 decision. I will examine each of these points. 1. Failure to remedy errors [ 41 ] As will be recalled, Mr. Lawrek gave evidence on the Industrial Sale at the Board hearing.

He testified that it had been arm’s length in nature and Brandt argued, as a result, that it should have been considered in the MAF calculation. The Board dealt with this submission by writing as follows: [29] The Board will first review the testimony of Mr. Lawrek. Mr. Lawrek provided only verbal testimony with no direct evidence of property values in these neighborhoods during the base period. As such, his testimony is primarily an opinion coming from a single property appraisal perspective.

The Board agrees with the Respondent that little or no weight can be placed on this testimony. [ 42 ] For its part, the Committee found that the Board’s understanding of Mr. Lawrek’s evidence had been erroneous. However, it gave no effect to that finding and instead said this: [33] The Board’s

summary of Mr. Lawrek’s testimony is not on point. At paragraph [29] of its decision, the Board discounted Mr. Lawrek’s evidence because it was based on a “… single property appraisal perspective.” This may be true, but does not describe why the Board disagreed with Mr. Lawrek that the 1850 Sale was “arm’s length”. The transcript of the Board hearing at page 54, line 5 to page 56, line 20, describes the testimony of Ms. Hadi with SAMA that relays a meeting with the occupant of 1850 Industrial Drive regarding the sales. Ms. Hadi recounts that the transactions were between closely-related parties.

Based on this information, SAMA did not use the sales. Despite the Board’s missing the core of Mr. Lawrek’s evidence, it was directly contradicted by SAMA. The Board had to determine which position it accepted and gave more weight to SAMA’s. We cannot find an error in the Board’s conclusion that the 1850 Sale should not be included. [ 43 ] As an aside, I note that SAMA accepts that the Board fundamentally misconceived Mr. Lawrek’s evidence and that it mischaracterized his evidence as an opinion about value rather than an opinion about whether a transaction had been arm’s length.

However, SAMA says this issue was not properly before the Committee and, by implication, is not properly before the Court. It contends that the mischaracterization of Mr. Lawrek’s evidence was not raised by Brandt in the notice of appeal it filed with the Committee. In this regard, SAMA points to ground 2(

c) of Brandt’s notice of appeal to the Committee and says that Brandt alleged, not that Mr. Lawrek’s evidence had been misconceived, but that the Board ought to have found that single property appraisals were admissible and relevant to demonstrate inequitable overvaluation. Ground 2(

c) reads as follows: 2. The Board erred by misapprehending the nature and purpose of the evidence of expert witnesses when it determined that the evidence should be given little or no weight, namely: … c. It failed to appreciate that Mr. Lawrek’s opinion was an opinion based on historical knowledge of real estate sales and discounted it as “single property appraisal”, ignoring the ruling of the Saskatchewan Court of Appeal that such evidence is admissible and relevant to demonstrate inequitable overvaluation. [ 44 ] In my view, SAMA’s reading of this ground is strained and not reasonable.

The words “It failed to appreciate that Mr. Lawrek’s opinion was an opinion based on historical knowledge of real estate sales” is obviously a reference to Mr. Lawrek’s testimony that the Industrial Sale had been arm’s length and the phrase “discounted it as ‘single property appraisal’” goes directly to the alleged failure by the Board to understand or appreciate Mr. Lawrek’s evidence. The concluding words of the subparagraph, “such evidence is admissible and relevant to demonstrate inequitable overvaluation”, considered in context, are an assertion that Mr.

Lawrek’s evidence about the nature of the historical sale was admissible and relevant, not that single property appraisals are admissible and relevant. In the end, I conclude that this issue was properly before the Committee. [ 45 ] Returning to the main track of the analysis, I agree with Brandt’s concerns about the Committee’s decision. It is not in any way

apparent how it could, on the one hand, find that the Board had “missed the core” of Mr. Lawrek’s evidence and, on the other hand, findthat the Board made no error in deciding that the Industrial Sale was not, in fact, arm’s length. In other words, an accurate appreciation ofMr. Lawrek’s evidence was essential if the Board was to properly weigh that evidence against SAMA’s evidence on the same issue. In myview, the fundamental illogic of the Committee’s reasoning reveals an error of law. 2.

Failure to address arguments [46] Brandt’s position before the Committee was that, by focusing only on the evidence that was new in the 2019 appeal, the Boardimproperly defaulted to the decisions made by it and the Committee in relation to the 2018 taxation year and failed to consider the totalityof the evidence before it. [47] By way of brief background on this point, it is useful to underline that assessments are performed annually. Each assessment“must reflect the facts, conditions and circumstances affecting the property as at January 1 of each year”. See: Act, s. 195(4).

A 30-dayappeal period begins to run once the assessment notices are sent out. See: Act, s. 226(1)(a). [48] It is evident, therefore, that a new right of appeal arises each year. Every annual assessment is a distinct decision made by theassessor and every such assessment gives rise to a fresh right of appeal. Property owners who challenge their assessments year after yearare not challenging the same decision repeatedly.

They are serially taking issue with new decisions and exercising fresh rights of appeal.With some statutory qualifications not relevant here, decisions made with respect to an assessment for a previous year do notautomatically determine the result of an appeal in a subsequent year. [49] In its decision, the Board made a number of comments that, according to Brandt, indicate that it did not approach theproceedings for 2019 as involving a fresh and freestanding right of appeal but, in effect, an exercise wherein Brandt was obliged todisplace the 2018 decisions made by the Board and the Committee.

In this regard, Brandt underlines the following passages from theBoard’s decision: [11] This appeal is, for the most part, a repeat of appeals received by this municipality and heard by this Board in 2018. The Board’s2018 decision was later appealed to the SMB-AAC (the Committee) who upheld the Board’s decision in their decision 2019 SKMB 85, 2019 SKMB 085 which was released subsequent to this hearing. … [15] Much of the Appellant’s information is identical to their position in the 2018 appeals. The Board will not restate this informationas it is available in our previous decision including the 2018 Board Record.

Both the Board and Committee decisions are included in therecord for reference purposes. [16] The significant difference in the appeal this year are two witnesses called by the Appellant to support their position. Mr. BillLevis, an instructor at the University of British Columbia, was the first witness called. Mr. Peter Lawrek, of Brunsdon Lawrek Appraisals,was the second witness called. Both witnesses were sworn by the Chair. Mr. Levis was recognized as an expert in mass appraisal as heteaches several of the courses most, if not all, licensed SAMA staff members must complete as part of their training. Mr.

Lawrek wasrecognized by all parties to be an expert in fee appraisal given his 25+ years of experience in fee appraisal. [17] Given that the Appellant’s written submission is effectively the same as last year, the Board will focus on the testimony providedby the two witnesses called by the Appellant this year along with any written material provided by these witnesses that are included in theAppellant’s submission. … [24] Notwithstanding the two witnesses, all other material facts, evidence and arguments made by the Appellant are identical to the2018 appeals. … [27] The Respondent briefly summarized their model, including the sales array and methodology used by the Appraiser to develop theirtime adjustment.

Once again, their testimony was brief and concise recognizing this Board heard the evidence in detail during the 2018appeals. [28] The Board will not repeat its analysis of the 2018 appeals. This can be found in Exhibit B-1 of the record of the Board. Theanalysis will, instead, focus on the evidence and testimony of the two new witnesses. … [34] The Board further notes that its reasoning and considerations during the 2018 appeals have been supported by the Committee afterappeal to the Committee.

In the result, the Board sees little reason to change its position for these appeals. [50] Brandt flagged the Board’s reliance on its 2018 decision in its notice of appeal to the Committee. Ground 5 of that notice said,“The Board erred by refusing to decide the assessment appeal based on the evidence submitted in 2019 choosing to defer to its decisionfrom 2018 and the AAC 2018 decision dismissing the appeal”. The whole of the Committee’s response to this ground of appeal is set outbelow: [38] Given the similarity between the 2018 and 2019 appeals, the Board had a very good appreciation of the issues before it.

The Boardidentified where 2019 differed from 2018, and correctly focussed on those differences. Altus’s appeal in 2018 was dismissed by the Boardand Committee and stands as precedent. It is Altus’s task in 2019 to present new convincing evidence. [51] In my view, there is considerable room in all of this for concern that, as argued by Brandt, the Board placed undue reliance on

its 2018 decision and effectively required Brandt to overcome that decision, rather than considering the whole of the evidence and making a decision based on that evidence. However, the question of law that Brandt has put before the Court is not whether the Committee erred by failing to overturn the Board’s decision on that basis. The question, as framed, is whether the Committee erred by failing to consider this aspect of Brandt’s appeal.

In light of paragraph 38 of the Committee’s decision, just quoted, I am unable to conclude that it made that error, i.e., that it failed to engage with this aspect of Brandt’s appeal. The Committee may have erred in its assessment of the strength or merit of Brandt’s argument but it did not fail to address that argument. Accordingly, I am unable to give effect to this aspect of Brandt’s submissions. V. CONCLUSION [ 52 ] Brandt’s appeal must be allowed and the Committee’s decision set aside.

It made errors of law that directly impacted the bottom line of its analysis. [ 53 ] This matter is remitted to the Committee for reconsideration against the background of this decision. Brandt is entitled to costs in the usual way. “Richards C.J.S.” Richards C.J.S. I concur. “Whitmore J.A.” Whitmore J.A. I concur. “Tholl J.A.” Tholl J.A.