79912 Manitoba Ltd. v. Winnipeg City Assessor, (1998) 131 Man.R.(2d) 264 (CA)

• Judge: Huband, Lyon and Kroft JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: September 08, 1998
• Jurisdiction: Manitoba
• Citations: (1998), 131 Man.R.(2d) 264 (CA)

79912 Man. Ltd. v. Assessor (1998), 131 Man.R.(2d) 264 (CA);

      187 W.A.C. 264

MLB headnote and full text

Temp. Cite: [1999] Man.R.(2d) TBEd. JA.019

79912 Manitoba Ltd.(appellant/appellant) v. The Assessor for the City of Winnipeg (respondent/respondent)

(AI 97-30-03494)

Valley Gardens Apartments Ltd. (appellant/appellant) v. The Assessor for the City of Winnipeg (respondent/respondent)

(AI 97-30-03532)

Indexed As: 79912 Manitoba Ltd. v. Winnipeg City Assessor

Manitoba Court of Appeal

Huband, Lyon and Kroft JJ.A.

December 16, 1998.

Summary:

One issue in two related assessment appeals was whether the Winnipeg City Assessor could seek an increase in the ass­essment at the Board of Revision level, or at the Municipal Board level, in response to a ratepayer's appeal without the Assessor filing an application for revision or a notice of appeal.

The Manitoba Court of Appeal determined the issue and allowed the appeals.

Real Property Tax - Topic 3512

Valuation - General principles - Valuation date - Valley appealed its property tax assessment for the year 1997 - A general assessment was last completed in 1994 and the reference year was 1991 - The evi­dence before the Municipal Board was that the building on the property was in need of significant repairs to the foundation - The repairs were effected in 1993 - In its delib­erations, the Municipal Board indicated that the 1997 assessment should deal with the property as repaired, rather than in need of repair - The Manitoba Court of Appeal held that the Board was right - The 1991 reference year simply meant that the property was to be valued as though it were put on the market in 1991 - How­ever, it was the repaired property, not the building in disrepair, that was to be so valued - See paragraphs 38 to 49.

Real Property Tax - Topic 7103

Assessment appeals - Provincially or municipally appointed tribunal or board - Duties and powers - The Winnipeg City Assessor argued that it could seek an increase in the assessment at the Board of Revision level, or at the Municipal Board level, in response to a ratepayer's appeal without the Assessor filing an application for revision or a notice of appeal - The Assessor relied on amendments to the Municipal Assessment Act (ss. 54(1) and 60(1)) - The Manitoba Court of Appeal reviewed the amendments and the provi­sions for applying for a revision and for an appeal and stated that procedural fairness was a paramount feature - The court agreed that the amendments broadened the authority of the Board of Revision and the Municipal Board, but only where the deci­sion would not work an injustice to the ratepayer - See paragraphs 1 to 33.

Real Property Tax - Topic 7103

Assessment appeals - Provincially or municipally appointed tribunal or board - Duties and powers - Valley sought a downward revision of its property's assessed value for 1997 - The assessor did not cross-appeal - At the hearing, the assessor requested an increase in the assessed value - The Board of Revision granted the increase - Valley appealed - The assessor did not cross-appeal - The Municipal Board confirmed the Board's assessment - The Manitoba Court of Appeal held that the Board of Revision had no right to increase the assessment where there was no application for an upward revision before the tribunal - None of the procedures which would have served notice upon Valley that the hearing might result in an upward revision had been followed - Therefore, the confirmation of the assessment by the Municipal Board was also in error - See paragraph 35.

Real Property Tax - Topic 7103

Assessment appeals - Provincially or municipally appointed tribunal or board - Duties and powers - 79912 Manitoba Ltd. applied for a downward revision of its property's assessment for 1997 - The assessor did not cross-apply for an upward revision - The Board of Revision con­firmed the original assessment - The com­pany appealed - The assessor did not appeal or cross-appeal - The Municipal Board increased the assessment on appeal -The Manitoba Court of Appeal set aside the upward revision because it was unjust to make such a revision without prior notice to the ratepayer that an upward revision was being sought - See paragraph 36.

Real Property Tax - Topic 7107

Assessment appeals - Provincially or municipally appointed tribunal or board - Jurisdiction - To revise assessment where no appeal - [See all Real Property Tax - Topic 7103 ].

Cases Noticed:

Orange Properties Ltd. v. Winnipeg City Assessor (1996), 107 Man.R.(2d) 278; 109 W.A.C. 278 (C.A.), refd to. [para. 4].

W.R.E. Development Ltd. v. Winnipeg City Assessor and Winnipeg (City) (1995), 100 Man.R.(2d) 202; 91 W.A.C. 202 (C.A.), refd to. [para. 6].

R. v. Heywood (R.L.), [1994] 3 S.C.R. 761; 174 N.R. 81; 50 B.C.A.C. 161; 82 W.A.C. 161, refd to. [para. 31].

Nocita (Vincent) Construction Co. v. Win­nipeg City Assessor (1993), 88 Man.R.(2d) 112; 51 W.A.C. 112 (C.A.), refd to. [para. 45].

Premark Canada Inc. v. Provincial Munici­pal Assessor (Man.) (1994), 95 Man.R.(2d) 196; 70 W.A.C. 196 (C.A.), refd to. [para. 46].

Statutes Noticed:

Municipal Assessment Act, S.M. 1989-90, c. 24; C.C.S.M., c. M-226, sect. 1(1) [para. 41]; sect. 42(1) [para. 17]; sect. 43(1), sect. 43(2) [para. 18]; sect. 44(1) [para. 19]; sect. 46(1) [para. 20]; sect. 54(1) [para. 9, Appendix]; sect. 54(2) [para. 22]; sect. 56(2) [para. 24]; sect. 56(4) [para. 25]; sect. 57(2) [para. 26]; sect. 57(2.1) [para. 27]; sect. 59(4) [para. 28]; 60(1) [para. 9, Appendix].

Counsel:

R.J. Handlon, for the appellants;

D.A.M. Pambrun, for the respondent;

T.D. Gisser, for the Municipal Board of Manitoba.

These appeals were heard on September 8, 1998, before Huband, Lyon and Kroft, JJ.A., of the Manitoba Court of Appeal. Huband, J.A., delivered the following judgment for the court on December 16, 1998.