Altus Group Ltd. v. Calgary (City) et al., (2015) 599 A.R. 223

• Judge: Martin, Rowbotham and Veldhuis, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: May 08, 2014
• Citations: (2015), 599 A.R. 223;2015 ABCA 86

Altus Group v. Calgary (2015), 599 A.R. 223; 643 W.A.C. 223 (CA)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. MR.018

Altus Group Limited on behalf of Various Owners (cross-appellant on cross-appeal/respondent on appeal/applicant) v. The City of Calgary (cross-respondent on cross-appeal/appellant on appeal/respondent) and The Assessment Review Board for City of Calgary (cross-respondent on cross-appeal/not a party to the appeal on appeal/respondent) and The Minister of Justice, Attorney General for Alberta (not a party to the appeal/respondent)

(1301-0356-AC; 2015 ABCA 86)

Indexed As: Altus Group Ltd. v. Calgary (City) et al.

Alberta Court of Appeal

Martin, Rowbotham and Veldhuis, JJ.A.

February 27, 2015.

Summary:

This appeal dealt with whether landlords of commercial office space should be assessed a business tax for the spaces they rented out to their tenants for parking. It also dealt with whether the newly constituted Calgary Assessment Review Board (ARB) was sufficiently institutionally independent to adjudicate these tax appeals.

The Alberta Court of Queen's Bench, in a decision reported at (2013), 573 A.R. 68, found that the ARB's decision about the imposition of business tax on the appellant landlords was unreasonable and not within the range of possible acceptable outcomes. Therefore, the court allowed the appeal on this issue. The court cancelled the ARB's decision. The court directed a rehearing by the ARB in accordance with the court's ruling and a Court of Appeal decision regarding a Municipal Government Board decision, especially with respect to the determination of whether a landlord was operating a business in premises in the parking spaces in question. Respecting the second ground of appeal, the court found that the ARB's structure had the necessary degree of independence as set out by the Alberta Legislature. The City appealed. The landlords cross-appealed.

The Alberta Court of Appeal dismissed the appeal and cross-appeal.

Editor's Note: The decision to grant leave to appeal in this case is reported at (2012), 570 A.R. 1.

Administrative Law - Topic 1032.2

Classification of power of function - Powers or functions classified as administrative - Municipal assessment review boards decisions - [See Real Property Tax - Topic 7102 ].

Administrative Law - Topic 2001

Natural justice - General principles - [See Real Property Tax - Topic 7102 ].

Administrative Law - Topic 9122

Boards and tribunals - Administrative appeals - Scope of appeal or standard of review - The Calgary Assessment Review Board (ARB) held that landlords of commercial office space should be assessed a business tax for the spaces they rented out to their tenants for parking - A chambers judge held that the appropriate standard of review of an ARB decision was "reasonableness" - The chambers judge overturned the ARB's decision where it had reached the opposite result from a previous ARB decision (BTC Decision) which had been upheld by the Court of Appeal as a reasonable interpretation of the law - The Legislature allowed for an appeal from an ARB decision on the law to the Court of Queen's Bench in order to guard against such a result - The cases did not allow administrative boards to come to opposite results when they had failed to identify and misapplied the tests as here (i.e., where there was an error of law) - The City appealed - The Alberta Court of Appeal applied a reasonableness standard and dismissed the appeal, but held that the outcome would have been the same even under a correctness standard - The court stated that "Canadian courts and commentators have noted the difficulty in accepting two conflicting interpretations by the same administrative tribunal as reasonable. In the context of a public statute, the rule of law and the boundaries of administrative discretion arguably cannot be served in the face of arbitrary, opposite interpretations of the law. ... the ARB adopted an interpretation of the Bylaw which found the respondent liable for business tax for the lease of parking spaces to tenants in connection with the lease of commercial office space. That result is opposite to the approach and outcome in the BTC Decision, which this court found to be reasonable. The apparent conflict between the ARB decision under appeal and the BTC Decision does not create an independent basis for judicial intervention. However, the BTC Decision provides a direct contextual comparison against which to judge the intelligibility, transparency and justifiability of the ARB's decision. The chambers judge appropriately referred to and relied on the analysis in the BTC Decision to inform her review of the ARB's decision on the appeal. In light of that context, the range of reasonable outcomes was significantly narrowed. Indeed, considering the importance of coherence in the interpretation of the Bylaw and its purpose in imposing a tax, it would be difficult to accept two opposite interpretations of the provision as reasonable." - See paragraphs 10 to 34.

Courts - Topic 691

Courts - Disqualification - Bias - Reasonable apprehension of bias - [See Practice - Topic 8880 ].

Practice - Topic 8880

Appeals - Leave to appeal - Requirement of reasons - The Calgary Assessment Review Board (ARB) held that landlords of commercial office space should be assessed a business tax for the spaces they rented out to their tenants for parking - An appeal to the Court of Queen's Bench was allowed - The chambers judge cancelled the ARB's decision and referred the matter back to the ARB for rehearing - The City appealed - It argued, inter alia, that the fact that the chambers judge heard both applications for leave to appeal and the appeal itself, as well as some statements made by her at both hearings, gave rise to reasonable apprehension of bias - The Alberta Court of Appeal stated that "While we find no merit in this argument, it fortifies our concern that generally when a court grants leave to appeal, little more than the grounds upon which leave is being granted need be identified. More elaborate reasons are best saved for those cases where leave to appeal is refused, as that will be the final word and the parties have a right to understand the reasoning leading to that conclusion." - See paragraphs 35 to 39.

Real Property Tax - Topic 681.1

Assessment - Business property - Premises defined - Parking facilities - At issue was a landlord's business tax liability for parking spaces leased on a permanent basis to its tenants - Section 4(1) of the relevant Bylaw provided that "Every person who operates a Business in Premises within the City shall be assessed by the Assessor for the purposes of imposing a Business tax." - The Calgary Assessment Review Board (ARB) found that the parking stalls were subject to a business assessment as against the landlords because: (a) parking spaces were included within the definition of "premises"; (b) parking stalls were occupied or used for the purpose of or in connection with a business; (c) business was operated in the "premises"; and (d) occupation or use of the parking spaces was for the purpose of or in connection with the complainants' business - A chambers judge found that the ARB's decision was unreasonable and not within the range of possible acceptable outcomes - The ARB made a fundamental error in its review of the assessments in light of s. 4 of the Bylaw by misapplying the appropriate tests in the case law and concluding that by managing space the landlords owned and deriving a profit from this space, it was occupying it for a business purposes - The City appealed - The Alberta Court of Appeal dismissed the appeal.

Real Property Tax - Topic 685

Assessment - Business property - Business being carried on - Determination of - [See Real Property Tax - Topic 681.1 ].

Real Property Tax - Topic 7102

Assessment appeals (incl. complaints) - Provincially or municipally appointed tribunal or board - Procedure - A chambers judge held that the Calgary Assessment Review Board (ARB) met the requirements for institutional independence of an adjudicating tribunal and the requirements for fair and impartial decisions - The common law principles of natural justice did not apply - While the Legislature, in the Municipal Government Act (MGA), provided that council had to establish an ARB and prescribe tenure and remuneration, the ultimate decision as to "how much and how long" was left to the municipality - The types of decisions the ARB made were not ones that might place it closer to the judicial end of the tribunal spectrum - The ARB did not issue decisions imposing penalties or disciplinary sanctions, nor could it affect personal freedoms or human rights interests - It was not a quasi-judicial board or a court, but an administrative body engaged in the review of municipal property assessment and taxation - Therefore, it was not entitled to the same constitutional guarantee of independence - Moreover, the degree of independence required of the ARB had been set out in the MGA - The court had to defer to a structure specifically set up by the Legislature - Had the constitutional principles of judicial independence extended to the ARB, the Legislature might or might not have been precluded from structuring the Board in the manner currently provided for under the MGA - There might be some concerns about the member's security of tenure and the transparency issues respecting financial compensation and administration - However, given the absence of constitutional constraints, the Legislature could determine the composition, structure, and ultimate degree of independence of municipal assessment review boards - There was no basis for the court to impose a common law degree of independence greater or different than that specifically set out under the MGA - The Alberta Court of Appeal agreed with the chambers judge's assessment of this issue - See paragraphs 41 to 45.

Real Property Tax - Topic 7152

Assessment appeals - Appeals to the courts - Powers of courts - General - [See Administrative Law - Topic 9122 ].

Real Property Tax - Topic 7160

Assessment appeals - Applications or appeals to the courts - Question relating to assessment - [See Administrative Law - Topic 9122 ].

Cases Noticed:

Calgary (City) v. Municipal Government Board (Alta.) et al. (2012), 519 A.R. 259; 539 W.A.C. 259; 2012 ABCA 13, refd to. [para. 3].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 6].

Canadian Natural Resources Ltd. v. Wood Buffalo (Regional Municipality) et al. (2013), 557 A.R. 207; 2013 ABQB 91, refd to. [para. 6].

Edmonton East (Capilano) Shopping Centres Ltd. v. Edmonton (City) et al. (2015), 599 A.R. 210; 643 W.A.C. 210; 2015 ABCA 85, refd to. [para. 11].

Irving Pulp and Paper Ltd. v. Communications, Energy and Paperworkers Union of Canada, Local 30, [2013] 2 S.C.R. 458; 445 N.R. 1; 404 N.B.R.(2d) 1; 1048 A.P.R. 1; 2013 SCC 34, refd to. [para. 16].

Halifax Employers Association v. International Longshoremen's Association, Local 269 (2004), 226 N.S.R.(2d) 159; 714 A.P.R. 159; 243 D.L.R.(4th) 101; 2004 NSCA 101, refd to. [para. 16].

Thompson Brothers (Construction) Ltd. v. Workers' Compensation Board Appeals Commission (Alta.) et al., [2012] A.W.L.D. 2212; 522 A.R. 118; 544 W.A.C. 118; 2012 ABCA 78, refd to. [para. 16].

Domtar Inc. v. Commission d'appel en matière de lésions professionnelles et autres, [1993] 2 S.C.R. 756; 154 N.R. 104; 55 Q.A.C. 241, refd to. [para. 20].

Ellis-Don Ltd. v. Labour Relations Board (Ont.) et al., [2001] 1 S.C.R. 221; 265 N.R. 2; 140 O.A.C. 201; 2001 SCC 4, refd to. [para. 21].

Sunnybrook and Women's College Health Sciences Centre v. Ontario (Minister of Finance) (2003), 170 O.A.C. 107; 2003 G.T.C. 1603 (C.A.), leave to appeal refused [2004] 1 S.C.R. xiv; 328 N.R. 194; 195 O.A.C. 196, refd to. [para. 22].

Hydro Ottawa Ltd. v. International Brotherhood of Electrical Workers, Local 636 (2007), 223 O.A.C. 114; 281 D.L.R.(4th) 443; 2007 ONCA 292, leave to appeal denied (2007), 383 N.R. 379 (S.C.C.), refd to. [para. 22].

National Steel Car Ltd. v. United Steelworkers of America, Local 7135 (2006), 218 O.A.C. 207; 278 D.L.R.(4th) 345; 159 L.A.C.(4th) 281 (C.A.), leave to appeal denied (2007), 374 N.R. 389; 241 O.A.C. 395 (S.C.C.), refd to. [para. 22].

Novaquest Finishing Inc v. Abdoulrab - see Abdoulrab et al. v. Labour Relations Board (Ont.) et al.

Abdoulrab et al. v. Labour Relations Board (Ont.) et al. (2009), 251 O.A.C. 28; 95 O.R.(3d) 641; 95 Admin. L.R.(4th) 121; 2009 ONCA 491, refd to. [para. 24].

Taub v. Investment Dealers Association of Canada et al. (2009), 255 O.A.C. 126; 311 D.L.R.(4th) 389; 2009 ONCA 628, refd to. [para. 25].

Canada (Canadian Human Rights Commission) v. Canada (Attorney General) - see Canada (Attorney General) v. Mowat.

Canada (Attorney General) v. Mowat, [2010] 4 F.C.R. 579; 395 N.R. 52; 2009 FCA 309, affd. [2011] 3 S.C.R. 471; 422 N.R. 248; 2011 SCC 53, refd to. [para. 26].

Alberta Power Ltd. et al. v. Public Utilities Board (Alta.) et al. (1990), 102 A.R. 353; 66 D.L.R.(4th) 286; 19 A.C.W.S.(3d) 763 (C.A.), leave to appeal denied (1990), 120 N.R. 80 (S.C.C.), refd to. [para. 28].

Husky Energy Inc. v. Alberta (2011), 514 A.R. 181; 11 W.W.R. 282; 2011 ABQB 268, affd. (2012), 533 A.R. 385; 557 W.A.C. 385 (C.A.), leave to appeal refused (2012), 447 N.R. 400 (S.C.C.), refd to. [para. 28].

Minister of National Revenue v. Canada Trustco Mortgage Co., [2005] 2 S.C.R. 601; 340 N.R. 1; 2005 SCC 54, refd to. [para. 28].

Toronto (City) v. Municipal Property Assessment Corp. et al. (2014), 315 O.A.C. 279; 234 A.C.W.S.(3d) 267; 2013 ONSC 6137 (Div. Ct.), refd to. [para. 28].

Lavesta Area Group Inc. v. Energy and Utilities Board (Alta.) et al. (2012), 522 A.R. 88; 544 W.A.C. 88; 40 Admin. L.R.(5th) 33l; 2012 ABCA 84, refd to. [para. 37].

R. v. Curragh Inc. et al., [1997] 1 S.C.R. 537; 209 N.R. 252; 159 N.S.R.(2d) 1; 468 A.P.R. 1; 44 D.L.R.(4th) 614, refd to. [para. 37].

Ocean Port Hotel Ltd. v. Liquor Control and Licensing Branch (B.C.), [2001] 2 S.C.R. 781; 274 N.R. 116; 155 B.C.A.C. 193; 254 W.A.C. 193; 2001 SCC 52, refd to. [para. 43].

Authors and Works Noticed:

Blake, Sara, Administrative Law in Canada (5th Ed. 2011), pp. 140, 141 [para. 17].

Wihak, L.J., Wither the Correctness Standard of Review? Dunsmuir, Six Years Later (2014), 27 Can. J. Admin. L. & Prac. 173, pp. 174 [para. 17]; 198, 199 [para. 30].

Counsel:

G.L. Ludwig, Q.C., and J.B. Laycraft, Q.C., for the cross-appellant/respondent;

M.J. Donaldson and P.G. Chiswell, for the cross-respondent/appellant, The City of Calgary;

P.J. Knoll, Q.C., for the cross-respondent, The Assessment Review Board for the City of Calgary.

This appeal and cross-appeal were heard on May 8, 2014, by Martin, Rowbotham and Veldhuis, JJ.A., of the Alberta Court of Appeal, who delivered the following memorandum of judgment on February 27, 2015.