Director of Assessment (N.S.) v. Gatsby's Bar & Eatery Ltd. et al., 2004 NSCA 56

• Judge: Saunders, Chipman and Oland, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: January 30, 2004
• Jurisdiction: Nova Scotia
• Citations: 2004 NSCA 56;(2004), 223 N.S.R.(2d) 70 (CA)

Assessment Director v. Gatsby's Bar (2004), 223 N.S.R.(2d) 70 (CA);

 705 A.P.R. 70

MLB headnote and full text

Temp. Cite: [2004] N.S.R.(2d) TBEd. AP.026

Director of Assessment (appellant) v. Gatsby's Bar & Eatery Limited and Halifax Regional Municipality (respondents)

(CA 200774; 2004 NSCA 56)

Indexed As: Director of Assessment (N.S.) v. Gatsby's Bar & Eatery Ltd. et al.

Nova Scotia Court of Appeal

Saunders, Chipman and Oland, JJ.A.

April 16, 2004.

Summary:

The Nova Scotia Utility and Review Board found that Gatsby's Bar & Eatery conducted business on its premises both as a restaurant and a lounge. After considering s. 11(4) of the Assessment Act, the Board stated that s. 11(7) precluded different business occupancy rates for numerous business purposes carried on in the same premises and that, in those circumstances, the assessment was to be based on the chief or preponderating business. The Board concluded that the chief or preponderating business was that of a restaurant as contemplated by s. 11(4)(a)(ii) and it used a tax rate of 25% in calculating the business occupancy tax. The Director of Assessment appealed, arguing that the Board's finding of fact was patently unreasonable. Alternatively, he argued that if the Board did not err in finding that Gatsby's chief and preponderating business was that of a restaurant, it should have applied the exception in s. 11(4) such that 75% percent of the premises would be a lounge which attracted a tax rate of 50%.

The Nova Scotia Court of Appeal dismissed the appeal.

Real Property Tax - Topic 1608

Persons and property liable to assessment - Business property - Occupancy tax - The Nova Scotia Utility and Review Board found that Gatsby's Bar & Eatery conducted business on its premises both as a restaurant and a lounge - After considering s. 11(4) of the Assessment Act, the Board stated that s. 11(7) precluded different business occupancy rates for numerous business purposes carried on in the same premises and that, in those circumstances, the assessment was to be based on the chief or preponderating business - The Board concluded that the chief or preponderating business was that of a restaurant as contemplated by s. 11(4)(a)(ii) and it used a tax rate of 25% in calculating the business occupancy tax - The Director of Assessment appealed - He argued that if the Board did not err in finding that Gatsby's chief and preponderating business was that of a restaurant, it should have applied the exception in s. 11(4) such that 75% percent of the premises would be a lounge which attracted a tax rate of 50% - The Nova Scotia Court of Appeal dismissed the appeal - The standard of review was reasonableness simpliciter and the Board's determination with respect to the application of s. 11(7) was not unreasonable.

Real Property Tax - Topic 1741

Persons and property liable to assessment - Mixed-use property - General - [See Real Property Tax - Topic 1608 ].

Cases Noticed:

Nova Scotia v. Research Island AG (1994), 132 N.S.R.(2d) 156; 376 A.P.R. 156 (C.A.), refd to. [para. 9].

G.M. v. Director of Victims' Services (N.S.) (2003), 211 N.S.R.(2d) 147; 662 A.P.R. 147 (C.A.), refd to. [para. 9].

Heritage Trust of Nova Scotia et al. v. Nova Scotia Utility and Review Board et al. (1994), 128 N.S.R.(2d) 5; 359 A.P.R. 5 (C.A.), refd to. [para. 11].

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, refd to. [para. 12].

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. 14].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 223 D.L.R.(4th) 599, refd to. [para. 18].

Nova Scotia (Attorney General) v. Williams (1996), 152 N.S.R.(2d) 291; 442 A.P.R. 291 (C.A.), refd to. [para. 20].

Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247; 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207; 223 D.L.R.(4th) 577, refd to. [para. 22].

Statutes Noticed:

Assessment Act, R.S.N.S. 1989, c. 23, sect. 11(4), sect. 11(7) [para. 4].

Authors and Works Noticed:

Blake, Sara, Administrative Law in Canada (3rd Ed. 2001), p. 188 [para. 14].

Counsel:

Kirby Grant, for the appellant;

Jack Bryant, agent for the respondent Gatsby's Bar & Eatery Ltd.;

Mary Donovan, for the respondent, Halifax Regional Municipality, not appearing;

Edward Gores, for the respondent, Attorney General of Nova Scotia, not appearing.

This appeal was heard on January 30, 2004, before Saunders, Chipman and Oland, JJ.A., of the Nova Scotia Court of Appeal. The following judgment of the Court of Appeal was delivered by Oland, J.A., on April 16, 2004.