Alta. v. Municipal Govt. Bd., 312 AR 40

• Judge: O'Leary, Hunt and Berger, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: October 01, 2001
• Jurisdiction: Alberta
• Citations: 312 AR 40;45 Admin LR (3d) 1;[2002] 11 WWR 418;[2002] AJ No 1068 (QL);218 DLR (4th) 61;6 Alta LR (4th) 199;(2002), 312 A.R. 40 (CA);2002 ABCA 199

Alta. v. Municipal Govt. Bd. (2002), 312 A.R. 40 (CA);

    281 W.A.C. 40

MLB headnote and full text

Temp. Cite: [2002] A.R. TBEd. SE.014

Her Majesty The Queen in Right of the Province of Alberta as represented by The Minister of Municipal Affairs (respondent/applicant) v. Telus Communications Inc. and Telus Communications (Edmonton) Inc. (appellants/respondents) and The Municipal Government Board, The City of Edmonton, The City of Calgary, The County of St. Paul No. 19, The Municipal District of Bonnyville No. 87, The Municipal District of Brazeau No. 77, The Municipal District of Greenview No. 16, Lakeland County, The Municipal District of Northern Lights No. 22 (respondents)

(0003-0539-AC; 2002 ABCA 199)

Indexed As: Alberta (Minister of Municipal Affairs) v. Municipal Government Board (Alta.) et al.

Alberta Court of Appeal

O'Leary, Hunt and Berger, JJ.A.

September 4, 2002.

Summary:

A provincial tax assessor found that Telus had to pay property taxes on computer software that provided special features available to its telephone customers. Telus appealed the assessment. The Municipal Government Board allowed the appeal. The Minister of Municipal Affairs applied for judicial review.

The Alberta Court of Queen's Bench, in a decision reported at 272 A.R. 34, allowed the application and sent the matter back to the Board for determination. Telus appealed.

The Alberta Court of Appeal allowed the appeal.

Administrative Law - Topic 1420

Finality - Privative clauses - Effect of - Section 506 of Alberta's Municipal Government Act provided that "There is no appeal from a decision of the Board" - The Alberta Court of Appeal stated that "This weak privative clause is somewhere between a true privative clause and a clause which allows full review by way of appeal. The moderate deference implied by s. 506 is, in my view, a factor which points towards the middle of the deference spectrum." - See paragraph 31.

Administrative Law - Topic 3202

Judicial review - General - Scope of review - The Alberta Court of Appeal stated that "The test to determine what standard of review to use is found in Pushpanathan [S.C.C.] ... The overall purpose of the test is to determine whether the legislature intended that the issue raised be left to the exclusive decision of the Board. In order to ascertain the legislature's intention, four factors must be weighed: privative clauses, expertise, the purpose of the Act as a whole and the provision in particular, and the nature of the problem. This method of determining standard of review is referred to as the 'pragmatic and functional' approach." - See paragraph 28.

Administrative Law - Topic 3202

Judicial review - General - Scope of review - The Municipal Government Board determined that feature software used in the switching gear of the telecommunications industry was not assessable as "linear property" under s. 284(1)(k)(ii) of the Municipal Government Act - The Alberta Court of Appeal held that the appropriate standard of review of this decision was patent unreasonableness - See paragraphs 27 to 39.

Administrative Law - Topic 5424

Judicial review - Certiorari - Appeals - Function or powers of an appeal court - The Alberta Court of Appeal held that an appeal court must apply a standard of correctness to a reviewing judge's choice of the standard of review to be applied to a tribunal's decision - If the reviewing judge selected the correct standard, the appeal court, absent any statutory limitation on the scope of appeal, would apply a standard of correctness in assessing whether the standard of review had been properly applied - However, the court should exercise restraint and decline to interfere with the reviewing judge's decision unless persuaded that it was clearly wrong - See paragraphs 16 to 26.

Administrative Law - Topic 9102

Boards and tribunals - Judicial review - Standard of review - [See both Administrative Law - Topic 3202 ].

Real Property Tax - Topic 1586

Persons and property liable to assessment -Buildings and equipment - Machinery and equipment used in processing or manufacturing - A provincial tax assessor found that Telus had to pay property taxes on feature software used in the switching gear of the telecommunications industry because it was "linear property" under s. 284(1)(k)(ii) of the Municipal Government Act - Telus appealed - The Municipal Government Board allowed the appeal - The Minister applied for judicial review - A chambers judge allowed the application - Telus appealed - The Alberta Court of Appeal allowed the appeal where the decision of the Municipal Government Board was not patently unreasonable - Further, it was not even unreasonable - See paragraphs 33 to 77.

Real Property Tax - Topic 7003

Assessment appeals - General principles - Scope of appeal or standard of review - [See second Administrative Law - Topic 3202 ].

Real Property Tax - Topic 7160

Assessment appeals - Applications or appeals to the courts - Question relating to assessment - [See Real Property Tax - Topic 1586 ].

Cases Noticed:

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201; 160 D.L.R.(4th) 193, refd to. [para. 14].

Lakeland College Faculty Association and Kaai v. Lakeland College (1998), 223 A.R. 1; 183 W.A.C. 1; 162 D.L.R.(4th) 338 (C.A.), refd to. [para. 16].

Board of Education (Roman Catholic) of Western Avalon v. Newfoundland Association of Public Employees (2000), 191 Nfld. & P.E.I.R. 5; 577 A.P.R. 5; 190 D.L.R.(4th) 146 (Nfld. C.A.), refd to. [paras. 19, 48].

Stinchcombe v. Law Society of Alberta (2002), 303 A.R. 67; 273 W.A.C. 67 (C.A.), refd to. [para. 20].

Brown v. Dental Association (Alta.) et al. (2002), 299 A.R. 60; 266 W.A.C. 60 (C.A.), refd to. [para. 21].

Alberta Union of Provincial Employees et al. v. Lethbridge Community College (2002), 303 A.R. 124; 273 W.A.C. 124 (C.A.), [para. 22].

Rollo Bay Holdings Ltd. v. Prince Edward Island Agricultural Development Corp. (1993), 113 Nfld. & P.E.I.R. 307; 353 A.P.R. 307 (P.E.I.C.A.), refd to. [para. 23].

Prince Edward Island Public Service Association v. Holland College (1986), 60 Nfld. & P.E.I.R. 82; 181 A.P.R. 82 (P.E.I.C.A.), refd to. [para. 23].

Friends of the Oldman River Society v. Canada (Minister of Transport and Minister of Fisheries and Oceans), [1992] 1 S.C.R. 3; 132 N.R. 321, refd to. [para. 24].

Reza v. Minister of Employment and Immigration, [1994] 2 S.C.R. 394; 167 N.R. 282; 72 O.A.C. 348, refd to. [para. 24].

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20, refd to. [para. 24].

St-Jean v. Mercier (2002), 282 N.R. 310 (S.C.C.), refd to. [para. 24].

Housen v. Nikolaisen et al. (2002), 286 N.R. 1; 219 Sask.R. 1 (S.C.C.), refd to. [para. 24].

R. v. Cinous (J.) (2002), 285 N.R. 1; 162 C.C.C.(3d) 129 (S.C.C.), refd to. [para. 39].

Foothills Provincial General Hospital v. United Nurses of Alberta, Local 115 (1998), 228 A.R. 122; 188 W.A.C. 122 (C.A.), refd to. [para. 48].

Statutes Noticed:

Municipal Government Act, S.A. 1994, c. M-26.1, sect. 284(1)(k)(ii) [para. 3].

Municipal Government Act Regulations, Standards of Assessment Regulation, AR 365/94, sect. 1(g) [para. 6].

Authors and Works Noticed:

Alberta, Special Properties Assessment Guide, sect. 2, item 10 [para. 7].

Kerans, R.P., Standards of Review Employed by Appellate Courts (1994), p. 127 [para. 24].

Counsel:

A.L. Friend, Q.C., and G.M. Johnson, for the appellants;

L.J. Burgess, Q.C., for the respondent, Her Majesty The Queen in Right of the Province of Alberta;

W.A.C. Rowe, for the respondent, the Municipal Government Board;

I.C. Johnson, for the respondent, the City of Edmonton;

S.E.A. Trylinski, for the respondent, the City of Calgary.

This appeal was heard on October 1, 2001, by O'Leary, Hunt and Berger, JJ.A., of the Alberta Court of Appeal. The court delivered its decision on September 4, 2002, when the following opinions were filed:

Berger, J.A. (O'Leary, J.A., concurring) - see paragraphs 1 to 40;

Hunt, J.A. - see paragraphs 41 to 50.