Calgary (City) v. Municipal Government Board (Alta.) et al., (2007) 414 A.R. 216 (QB)

• Judge: Phillips, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: September 29, 2006
• Citations: (2007), 414 A.R. 216 (QB);2007 ABQB 47

Calgary v. Municipal Govt. Bd. (2007), 414 A.R. 216 (QB)

MLB headnote and full text

Temp. Cite: [2007] A.R. TBEd. FE.065

The City of Calgary (applicant) v. The Municipal Government Board and Hudson's Bay Company (respondents)

(0601 02295; 2007 ABQB 47)

Indexed As: Calgary (City) v. Municipal Government Board (Alta.) et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Phillips, J.

January 29, 2007.

Summary:

The Hudson's Bay Company, as anchor tenant of four shopping centres, filed Assessment Review Board (ARB) complaints regarding the assessment attributable to its space in the centres. The ARB held that it lacked jurisdiction to hear the complaints. The Bay appealed to the Municipal Government Board (MGB). The appeal was allowed. The MGB held that the ARB had a duty to hear the complaints. The city sought judicial review.

The Alberta Court of Queen's Bench allowed the application. The MGB's decision was set aside. The court granted a declaration that the Bay was neither an "assessed person" nor a "taxpayer" entitled to file complaints or appeals regarding the shopping centres' property assessments.

Administrative Law - Topic 9123

Boards and tribunals - Administrative appeals - Nature of - A department store tenant of four shopping centres filed Assessment Review Board (ARB) complaints regarding the assessment attributable to its space in the centres - The ARB held that it lacked jurisdiction to hear the complaints - The tenant's appeal to the Municipal Government Board (MGB) was allowed - The city sought judicial review, asserting, inter alia, that the MGB erred in finding that the MGB hearing was a de novo hearing rather than an appeal and by failing to review and consider the record of the ARB - The tenant asserted that the issues were moot and obiter in that they were immaterial to the MGB's decision to direct the matter back to the ARB - The Alberta Court of Queen's Bench agreed that the issues were moot and obiter - However, the court indicated that, having regard to the language of the Act and the Assessment Complaints and Appeals Regulation (ACAR), an appeal to the MGB to which Part 1 of the ACAR applied was a hybrid of a true appeal and a hearing de novo - The MGB had to, at a minimum, review the entire record of the ARB hearing in order to determine the weight to be accorded to the ARB decision, if any - See paragraphs 104 to 119.

Estoppel - Topic 386

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Issues decided in prior proceedings (incl. validity of statutes) - A department store tenant of four shopping centres filed Assessment Review Board (ARB) complaints regarding the assessment attributable to its space in the centres and applied for an order compelling the city to provide assessment information - Lo Vecchio, J., held that the tenant was not an "assessed person" as a tenant, but as owner of a downtown store, it was entitled to an assessment summary regarding any assessed property - The ARB held that it lacked jurisdiction to hear the complaints - The tenant appealed the ARB decision to the Municipal Government Board (MGB) - The appeal was allowed - As an owner of a downtown store, the tenant was an "assessed person" who had a right to file a complaint - The city sought judicial review - As a collateral issue, the city asserted that the issue of whether a tenant was an "assessed person" was res judicata - The Alberta Court of Queen's Bench held that no issue estoppel arose - The question before Lo Vecchio, J., was the entitlement of a tenant to receive assessment information - This was different from the question of the entitlement of a tenant to file a property assessment complaint - See paragraphs 35 to 46.

Municipal Law - Topic 2104

Municipal taxation or levies - General - Legislation - Interpretation - A department store tenant of four shopping centres filed Assessment Review Board (ARB) complaints regarding the assessment attributable to its space in the centres - Under s. 460(3) of the Municipal Government Act, a complaint could be made only by "an assessed person or a taxpayer" - The ARB held that it lacked jurisdiction to hear the complaints - The tenant's appeal to the Municipal Government Board (MGB) was allowed - As an assessed person in the city through its ownership of a downtown store, the tenant could file a complaint - The city sought judicial review, asserting, inter alia, that the MGB erred in its interpretation of s. 460(3) - The Alberta Court of Queen's Bench allowed the application - The standard of review was correctness - The court adopted a contextual approach to the interpretation of the Act - The words "assessed person" in s. 460(3) meant the specific owner of the specific assessed property, not "the" or "a" tenant of the assessed property nor the owner of any other assessed property - Here, the assessed person was the shopping centre's owner - The court declared that the tenant was not entitled to file complaints or appeals regarding the shopping centres' property assessments - See paragraphs 47 to 87.

Municipal Law - Topic 2104

Municipal taxation or levies - General - Legislation - Interpretation - A department store tenant of four shopping centres filed Assessment Review Board (ARB) complaints regarding the assessment attributable to its space in the centres - Under s. 460(3) of the Municipal Government Act, a complaint could be made only by "an assessed person or a taxpayer" - The ARB held that it lacked jurisdiction to hear the complaints - The tenant's appeal to the Municipal Government Board (MGB) was allowed - As an assessed person in the city through its ownership of a downtown store, the tenant could file a complaint - The city sought judicial review, asserting, inter alia, that the MGB erred in its interpretation of s. 460(3) - The Alberta Court of Queen's Bench allowed the application - The standard of review was correctness - The court rejected the tenant's arguments that it was a "taxpayer" within s. 460(3) because it paid business taxes to the city and paid property taxes indirectly through its rental payments - A taxpayer under s. 460(3) was a payer of property tax, not any tax, and was the person ultimately liable for the tax - Further, read contextually, "taxpayer" in s. 460(3) meant the person liable to pay the tax levied against the specific property assessed, not any property - Here, the taxpayer was each shopping centre's owner - The court declared that the tenant was not entitled to file complaints or appeals regarding the shopping centres' property assessments - See paragraphs 47 to 66 and 88 to 103.

Real Property Tax - Topic 7003

Assessment appeals - General principles - Scope of appeal or standard of review - [See Administrative Law - Topic 9123 ].

Real Property Tax - Topic 7005

Assessment appeals - General principles - Persons entitled to appeal - [See both Municipal Law - Topic 2104 ].

Real Property Tax - Topic 7105

Assessment appeals - Provincially or municipally appointed tribunal or board - Jurisdiction - General - [See both Municipal Law - Topic 2104 ].

Real Property Tax - Topic 7105

Assessment appeals - Provincially or municipally appointed tribunal or board - Jurisdiction - General - A department store tenant of four shopping centres filed Assessment Review Board (ARB) complaints regarding the assessment attributable to its space in the centres - The ARB held that it lacked jurisdiction to hear the complaints - The tenant's appeal to the Municipal Government Board (MGB) was allowed - The city sought judicial review, asserting, inter alia, that the MGB lacked jurisdiction to direct the matter back to the ARB - The Alberta Court of Queen's Bench allowed the application - The standard of review was correctness - The MGB had no express power to direct a matter back to the ARB - Further, s. 499(1)(d) of the Municipal Government Act empowered the MGB to make any decision that the ARB could have made - Read in conjunction with the Assessment Complaints and Appeals Regulation, this manifested a legislative intention to have the MGB decide outstanding matters - The MGB's decision was set aside - See paragraphs 120 to 128.

Real Property Tax - Topic 7210

Assessment appeals - Practice - Record on appeal - [See Administrative Law - Topic 9123 ].

Statutes - Topic 2625

Interpretation - Interpretation of words and phrases - Words of reference - Use of "a" and "the" - [See first Municipal Law - Topic 2104 ].

Words and Phrases

Assessed person - The Alberta Court of Queen's Bench considered the meaning of this phrase as found in s. 460(3) of the Municipal Government Act - See paragraphs 67 to 87.

Words and Phrases

Taxpayer - The Alberta Court of Queen's Bench considered the meaning of "taxpayer" as found in s. 460(3) of the Municipal Government Act - See paragraphs 88 to 103.

Cases Noticed:

574095 Alberta Ltd. v. Hamilton Brothers Exploration Co. et al. (2003), 320 A.R. 351; 288 W.A.C. 351; 2003 ABCA 34, refd to. [para. 36].

Danyluk v. Ainsworth Technologies Inc. et al., [2001] 2 S.C.R. 460; 272 N.R. 1; 149 O.A.C. 1; 2001 SCC 44, refd to. [para. 43].

Angle v. Minister of National Revenue, [1975] 2 S.C.R. 248; 2 N.R. 397, refd to. [para. 43].

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. 47].

Monsanto Canada Inc. v. Superintendent of Financial Services (Ont.) et al., [2004] 3 S.C.R. 152; 324 N.R. 259; 189 O.A.C. 201; 2004 SCC 54, refd to. [para. 49].

Castle-Crown Wilderness Coalition v. Alberta (Minister of Environment) et al. (2005), 371 A.R. 370; 354 W.A.C. 370; 2005 ABCA 283, refd to. [para. 49].

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. 50].

Foster v. Transportation and Safety Board (Alta.) (2006), 397 A.R. 82; 384 W.A.C. 82; 2006 ABCA 282, refd to. [para. 50].

Nabors Canada LP v. Workers' Compensation Board Appeals Commission (Alta.) et al. (2006), 397 A.R. 57; 384 W.A.C. 57; 2006 ABCA 371, refd to. [para. 50].

Syndicat national des employés de la Commission scolaire régionale de l'Outaouais (CSN) v. Union des employés de service, Local 298 (FTQ), [1988] 2 S.C.R. 1048; 95 N.R. 161; 24 Q.A.C. 244, refd to. [para. 51].

Union des employés de service, local 298 v. Bibeault - see Syndicat national des employés de la commission scolaire régionale de l'Outaouais (CSN) v. Union des employés de service, local 298 (FTQ).

Bibeault - see Syndicat national des employés de la commission scolaire régionale de l'Outaouais (CSN) v. Union des employés de service, local 298 (FTQ).

U.E.S., Local 298 v. Bibeault - see Union des employés de service.

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. 51].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, refd to. [para. 52].

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. 54].

Alberta (Minister of Municipal Affairs) v. Municipal Government Board (Alta.) et al. (2002), 312 A.R. 40; 281 W.A.C. 40; 218 D.L.R.(4th) 61; 2002 ABCA 199, refd to. [para. 56].

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. 57].

Barrie Public Utilities et al. v. Canadian Cable Television Association et al., [2003] 1 S.C.R. 476; 304 N.R. 1; 2003 SCC 28, refd to. [para. 59].

University of Alberta v. Edmonton (City) et al. (2005), 363 A.R. 378; 343 W.A.C. 378; 2005 ABCA 147, refd to. [para. 60].

Alliance Pipeline Ltd. v. Alberta (Minister of Municipal Affairs) et al. (2006), 376 A.R. 44; 360 W.A.C. 44; 2006 ABCA 9, leave to appeal refused (2006), 359 N.R. 393 (S.C.C.), refd to. [para. 60].

Alberta Union of Provincial Employees et al. v. Lethbridge Community College, [2004] 1 S.C.R. 727; 319 N.R. 201; 348 A.R. 1; 2004 SCC 28, refd to. [para. 64].

Meditrust Healthcare Inc. v. Shoppers Drug Mart et al. (2002), 165 O.A.C. 147; 61 O.R.(3d) 786 (C.A.), refd to. [para. 71].

Manley Inc. v. Fallis (1977), 2 B.L.R. 277 (Ont. C.A.), refd to. [para. 72].

ATCO Gas and Pipelines Ltd. v. Energy and Utilities Board (Alta.), [2006] 1 S.C.R. 140; 344 N.R. 293; 380 A.R. 1; 363 W.A.C. 1; 2006 SCC 4, refd to. [para. 77].

Morguard Investments Ltd. et al. v. Assessor of Area No. 12 - Coquitlam, [2004] B.C.T.C. 1270; 1 M.P.L.R.(4th) 214; 2004 BCSC 1270, affd. (2006), 221 B.C.A.C. 219; 364 W.A.C. 219; 51 B.C.L.R.(4th) 334; 2006 BCCA 26, refd to. [para. 90].

Westbank First Nation v. British Columbia Hydro and Power Authority, [1999] 3 S.C.R. 134; 246 N.R. 201; 129 B.C.A.C. 1; 210 W.A.C. 1, refd to. [para. 97].

Calgary General Hospital v. Williams (1982), 42 A.R. 1 (C.A.), refd to. [para. 108].

College of Hearing Aid Practitioners of Alberta v. Zieniewicz et al., [2003] A.R. Uned. 678; 24 Alta. L.R.(4th) 59; 2003 ABCA 346, refd to. [para. 114].

Plimmer v. Chief of Police et al. (2004), 354 A.R. 62; 329 W.A.C. 62; 2004 ABCA 175, refd to. [para. 114].

Statutes Noticed:

Municipal Government Act, R.S.A. 2000, c. M-26, sect. 284(1)(a) [para. 25]; sect. 304 [para. 27]; sect. 460(3), sect. 462(1)(b), sect. 470 [para. 30]; sect. 488(1)(c), sect. 499(1)(d) [para. 31].

Authors and Works Noticed:

Blake, Sara, Administrative Law in Canada (3rd Ed. 2001), p. 166 [para. 117].

Blake, Sara, Administrative Law in Canada (4th Ed. 2006), p. 165 [para. 109].

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 87 [para. 77].

Falzon, Frank A.V., Appeals to Administrative Tribunals (2005), 18 C.J.A.L.P. 1, pp. 34, 35 [para. 110].

Fraser and Stewart, Company Law of Canada (6th Ed. 1993), p. 21 [para. 70].

Nicholls, Christopher C., Corporate Law (2005), pp. 185 to 214 [para. 70].

Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes (4th Ed. 2002), pp. 51 [para. 82]; 187 [para. 84]; 283 [paras. 78, 100].

Wakefield, Kim D., Alberta Municipal Law and Commentary (2005), p. 262 [para. 106].

Counsel:

Leila Gosselin, for the applicant;

Gilbert Ludwig, for the respondent, Hudson's Bay Company;

Mark Talaga, for the respondent, Municipal Government Board.

This application was heard on July 17 and September 29, 2006, by Phillips, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following reasons for judgment on January 29, 2007.