Boardwalk Reit LLP v. Edmonton (City) et al., 2006 ABQB 683

• Judge: Ross, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: April 20, 2006
• Citations: 2006 ABQB 683;(2006), 411 A.R. 38 (QB)

Boardwalk Reit LLP v. Edmonton (2006), 411 A.R. 38 (QB)

MLB headnote and full text

Temp. Cite: [2006] A.R. TBEd. SE.071

Boardwalk Reit LLP (applicant) v. The City of Edmonton and the Municipal Government Board (respondents)

(0603 00438; 2006 ABQB 683)

Indexed As: Boardwalk Reit LLP v. Edmonton (City) et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Ross, J.

September 19, 2006.

Summary:

Boardwalk Reit LLP owned 90 multi-residential properties in Edmonton. Pursuant to s. 295(4) of the Municipal Government Act, the Municipal Government Board denied Boardwalk the right to make complaints regarding 2004 property tax assessments where it found that Boardwalk had not fully complied with requests for information made by the City of Edmonton under s. 295(1) of the Act, and that the requested information was "necessary" to prepare the assessments. Boardwalk sought judicial review of the Board's decision, claiming that it substantially complied with the requests and that any missing information was not "necessary". Boardwalk also claimed that the denial of its right to complain was imposed in breach of the duty of fairness.

The Alberta Court of Queen's Bench dismissed the application.

Administrative Law - Topic 2270

Natural justice - The duty of fairness - Circumstances or powers to which duty does not apply - [See Municipal Law - Topic 1601 ].

Municipal Law - Topic 1601

Powers of municipalities - Exercise of powers - Natural justice - Duty of fairness - When required - Pursuant to s. 295(4) of the Municipal Government Act, the Municipal Government Board denied Boardwalk Reit LLP the right to make complaints regarding 2004 property tax assessments where it found that Boardwalk had not fully complied with requests for information made by the City of Edmonton under s. 295(1) of the Act, and that the requested information was "necessary" to prepare the assessments - Boardwalk sought judicial review of the Board's decision - Before the Board, Boardwalk had argued that the City's actions breached the duty of fairness - The City argued that the decision-makers regarding whether Boardwalk's complaints were barred by s. 295 were the Municipal Government Board and the Assessment Review Board and that those were the bodies that owed Boardwalk a duty of fairness, not the City - The Alberta Court of Queen's Bench agreed that the City's only role in this process was as a party, and, as such, it was not bound by the duty of fairness - See paragraphs 43 to 51.

Real Property Tax - Topic 625

Assessment - The assessor - Power to request information relevant to assessment - Boardwalk Reit LLP owned 90 multi-residential properties in Edmonton - Pursuant to s. 295(4) of the Municipal Government Act, the Municipal Government Board denied Boardwalk the right to make complaints regarding 2004 property tax assessments where the Board found that Boardwalk had not fully complied with requests for information made by the City of Edmonton under s. 295(1) of the Act - The Board accepted that not all of the terms used on the City's forms had a clear meaning - However, the Board held that in view of Boardwalk's sophistication, its familiarity with information requests, and its ability to seek further information and clarify any items found to be confusing, its argument regarding clarity did not have sufficient merit - The Alberta Court of Queen's Bench dismissed an application for judicial review of the Board's decision - The Board's determination that possible ambiguity did not give rise to a real concern in the circumstances accorded with the evidence - This was not a situation in which Boardwalk provided information based on a misinterpretation of an ambiguous term - Rather, the documents that it submitted simply did not contain all of the information requested on the City forms - Further, there was nothing unreasonable in the Board considering the impact of an alleged lack of clarity in light of the parties' experience - See paragraph 34.

Real Property Tax - Topic 625

Assessment - The assessor - Power to request information relevant to assessment - Boardwalk Reit LLP owned 90 multi-residential properties in Edmonton - Pursuant to s. 295(4) of the Municipal Government Act, the Municipal Government Board denied Boardwalk the right to make complaints regarding 2004 property tax assessments where the Board found that Boardwalk had not fully complied with requests for information made by the City of Edmonton under s. 295(1) of the Act - Boardwalk applied for judicial review, arguing that the information requested of it did not meet the standard of necessity - Boardwalk submitted that information of the type requested was used to prepare and validate mass appraisal models, but it was not indispensable to prepare an assessment of Boardwalk's property - The Alberta Court of Queen's Bench dismissed the application - The Board's reasons provided a line of analysis which reasonably led to the conclusion that the information requested was necessary - Boardwalk's argument, that "necessary" information did not include information necessary to develop mass appraisal models or validate assessments based on those models, would render the mass appraisal process and the market value standard itself more difficult, if not impossible, to achieve - See paragraphs 35 to 38.

Real Property Tax - Topic 625

Assessment - The assessor - Power to request information relevant to assessment - Pursuant to s. 295(4) of the Municipal Government Act, the Municipal Government Board denied Boardwalk Reit LLP the right to make complaints regarding 2004 property tax assessments where the Board found that Boardwalk had not fully complied with requests for information made by the City of Edmonton under s. 295(1) of the Act - Boardwalk applied for judicial review - Boardwalk argued that the Board essentially concluded that there was "substantial compliance" with the information request, but that substantial compliance was insufficient and a taxpayer had to provide the entirety of requested information or lose the right to appeal - Boardwalk submitted that such a strict approach to compliance was unreasonable - The Alberta Court of Queen's Bench held that if the Board had held that substantial compliance with an information request was not sufficient compliance with s. 295 to preserve a taxpayer's right to complain, then it would have concerns with the fairness and reasonableness of the Board's decision - However, taken in the context of the Board's decision as a whole, the court did not regard its comments as having that effect - First, the missing information was information that the City's expert witness testified was necessary to prepare and validate mass appraisal models for the assessment of market value - Second, the Board's decision made it clear that it took into account the substance or reasonableness of Boardwalk's response - The Board concluded that, while Boardwalk may have provided a substantial amount of information, it did not provide necessary information and it did not substantially comply with the request for information - See paragraphs 39 to 42.

Real Property Tax - Topic 7003

Assessment appeals - General principles - Scope of appeal or standard of review - Pursuant to s. 295(4) of the Municipal Government Act, the Municipal Government Board denied Boardwalk Reit LLP the right to make complaints regarding 2004 property tax assessments where it found that Boardwalk had not fully complied with requests for information made by the City of Edmonton under s. 295(1) of the Act, and that the requested information was "necessary" to prepare the assessments - Boardwalk sought judicial review of the Board's decision, claiming that it substantially complied with the requests and that any missing information was not "necessary" - The Alberta Court of Queen's Bench applied the pragmatic and functional analysis and held that the standard of review was reasonableness - See paragraphs 9 to 29.

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, refd to. [para. 9].

Workers' Compensation Board (Alta.) v. Workers' Compensation Board Appeals Commission (Alta.) (2005), 371 A.R. 318; 354 W.A.C. 318; 2005 ABCA 276, refd to. [para. 10].

Alliance Pipeline Ltd. v. Alberta (Minister of Municipal Affairs) et al. (2006), 376 A.R. 44; 360 W.A.C. 44; 2006 ABCA 9, refd to. [para. 11].

Alberta (Minister of Municipal Affairs) v. Telus Communications Inc. - see Alberta (Minister of Municipal Affairs) v. Municipal Government Board (Alta.) et al.

Alberta (Minister of Municipal Affairs) v. Municipal Government Board (Alta.) et al. (2002), 312 A.R. 40; 281 W.A.C. 40; 2002 ABCA 199, refd to. [para. 11].

University of Alberta v. Edmonton (City) et al. (2005), 363 A.R. 378; 343 W.A.C. 378; 2005 ABCA 147, dist. [para. 13].

Calgary (City) v. Northland Properties Ltd. et al., [2003] A.R. Uned. 443; 2003 ABQB 668, refd to. [para. 19].

Calgary (City) v. 719491 Alberta Inc., [2001] A.M.G.B.O. 54, refd to. [para. 21].

Lord SM Holdings Ltd. v. Edmonton (City), [2003] A.M.G.B.O. No. 216, refd to. [para. 21].

Sutton Place Grande Ltd. v. Edmonton (City), [2006] A.M.G.B.O. No. 33, refd to. [para. 21].

Elton Construction Ltd. v. Edmonton (City), [2005] A.M.G.B.O. No. 230, refd to. [para. 21].

Chiro Foods Ltd. v. Edmonton (City), [2002] A.M.G.B.O. No. 144, refd to. [para. 21].

Westcorp Hospitality Ltd. v. Calgary (City), [2002] A.M.G.B.O. No. 38, refd to. [para. 21].

742718 Alberta Ltd. v. Edmonton (City), [2003] A.M.G.B.O. No. 133, refd to. [para. 21].

Boardwalk Equities Inc. v. Wood Buffalo (Regional Municipality), [2000] A.M.G.B.O. No. 117, refd to. [para. 21].

Greenwood Inn Ltd. v. Edmonton (City), [2002] A.M.G.B.O. No. 166, refd to. [para. 21].

Calgary (City) v. Municipal Government Board (Alta.) et al. (2004), 353 A.R. 332; 2004 ABQB 85, refd to. [para. 26].

Calgary (City) v. Municipal Government Board (Alta.) et al., [2004] A.R. Uned. 488; 2004 ABQB 510, refd to. [para. 26].

FHR Real Estate Corp. v. Banff (Town) et al., [2004] A.R. Uned. 882; 2004 ABQB 557, refd to. [para. 26].

Voice Construction Ltd. v. Construction & General Workers' Union, Local 92, [2004] 1 S.C.R. 609; 318 N.R. 332; 346 A.R. 201; 320 W.A.C. 201; 2004 SCC 23, refd to. [para. 29].

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; 2003 SCC 20, refd to. [para. 30].

Talisman Energy Inc. v. Alberta (Municipal Affairs, Linear Assessor), [2000] A.M.G.B.O. No. 26, refd to. [para. 35].

Moreau-Bérubé v. New Brunswick (Judicial Council) - see Conseil de la magistrature (N.-B.) v. Moreau-Bérubé.

Conseil de la magistrature (N.-B.) v. Moreau-Bérubé, [2002] 1 S.C.R. 249; 281 N.R. 201; 245 N.B.R.(2d) 201; 636 A.P.R. 201; 2002 SCC 11, refd to. [para. 44].

Cardinal and Oswald v. Kent Institution (Director), [1985] 2 S.C.R. 643; 63 N.R. 353, refd to. [para. 50].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 50].

Amoco Canada Petroleum Co. v. Alberta (Minister of Municipal Affairs), 2000 ABCA 252, refd to. [para. 51].

Statutes Noticed:

Municipal Government Act, R.S.A. 2000, c. M-26, sect. 295(1) [para. 3]; sect. 295(4) [para. 4].

Counsel:

Mark Young and Debi Piecowye (Law Branch, City of Edmonton), for The City of Edmonton;

Mark Talaga (Municipal Government Board), for The Municipal Government Board;

Judson E. Virtue (MacLeod Dixon LLP), for Boardwalk Reit LLP.

This application was heard on April 20, 2006, before Ross, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on September 19, 2006.