Canadian Natural Resources Ltd. v. Wood Buffalo (Regional Municipality) et al., 2012 ABQB 177

• Judge: Sulyma, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: September 30, 2011
• Citations: 2012 ABQB 177;(2012), 535 A.R. 281 (QB)

Cdn. Natural Resources v. Wood Buffalo (2012), 535 A.R. 281 (QB)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. MR.141

Canadian Natural Resources Limited (applicant) v. The Regional Municipality of Wood Buffalo, the Regional Municipality of Wood Buffalo Composite Assessment Review Board and the Minister of Justice, Attorney General for Alberta (respondents)

(1113 00044; 1113 00090; 2012 ABQB 177)

Indexed As: Canadian Natural Resources Ltd. v. Wood Buffalo (Regional Municipality) et al.

Alberta Court of Queen's Bench

Judicial District of Ft. McMurray

Sulyma, J.

March 14, 2012.

Summary:

The applicant sought leave to appeal under s. 470 of the Municipal Government Act, challenging two preliminary decisions of a Municipal Composite Assessment Review Board.

The Alberta Court of Queen's Bench granted the application in part.

Editor's Note: An application for a stay in this proceeding was granted at 516 A.R. 51.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Apprehension of - [See sixth Real Property Tax - Topic 7167 ].

Administrative Law - Topic 2093

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Institutional or systemic bias - [See sixth Real Property Tax - Topic 7167 ].

Administrative Law - Topic 3302

Judicial review - General - Bars - Alternate remedy - [See second Real Property Tax - Topic 7167 ].

Administrative Law - Topic 3345.2

Judicial review - General - Practice - Issues not raised before tribunal - [See sixth Real Property Tax - Topic 7167 ].

Administrative Law - Topic 6153

Judicial review - Statutory appeal - Bars - Existence of another remedy - [See second Real Property Tax - Topic 7167 ].

Administrative Law - Topic 6281

Judicial review - Statutory appeal - Practice - General - [See sixth Real Property Tax - Topic 7167 ].

Administrative Law - Topic 7096

Judicial review - Bars - Discretionary bars - Existence of convenient or adequate alternative remedy - [See second Real Property Tax - Topic 7167 ].

Courts - Topic 2004

Jurisdiction - General principles - Inherent jurisdiction - [See second and sixth Real Property Tax - Topic 7167 ].

Practice - Topic 1331

Pleadings - The issues - General - [See third Real Property Tax - Topic 7167 ].

Real Property Tax - Topic 7003

Assessment appeals (incl. complaints) - General principles - Scope of appeal or standard of review - [See second, third, fourth and fifth Real Property Tax - Topic 7167 ].

Real Property Tax - Topic 7167

Assessment appeals (incl. complaints) - Applications or appeals to the courts - Leave to appeal - The applicant challenged two preliminary decisions of a Municipal Composite Assessment Review Board (CARB) by seeking leave to appeal under s. 470 of the Municipal Government Act (MGA) - The Alberta Court of Queen's Bench stated that "Subsection 470(5) of the amended MGA provides the test for obtaining leave to appeal, which can be distilled to three main requirements: (a) the appeal involves a question of law or jurisdiction; (b) the issue is of sufficient importance to merit an appeal; and (c) the appeal has a reasonable chance of success." - See paragraph 7 - "An appeal to this Court is available only on questions of pure law and jurisdiction. If the question is one of fact, or even mixed law or fact, the analysis stops there and an application for leave must fail. The rule is strict. Where a question of mixed fact and law is involved, leave to appeal may only be granted if a pure legal question can be extricated ..." - See paragraph 109.

Real Property Tax - Topic 7167

Assessment appeals (incl. complaints) - Applications or appeals to the courts - Leave to appeal - The applicant challenged a preliminary decision of a Municipal Composite Assessment Review Board (CARB) by seeking leave to appeal under s. 470 of the Municipal Government Act (MGA) - Section 467(1) of the MGA provided that "An assessment review board may, with respect to any matter referred to in section 460(5), make a change to an assessment roll or tax roll or decide that no change is required." - The applicant questioned whether the CARB erred in finding that its authority under s. 467(1) was limited to changing the amount of the assessment - The applicant had sought a declaration that an amended assessment was illegal, asking for the original assessment to be reinstated - Its position was that since the amended assessment was illegal, there was no need for a full hearing on the merits and what it called "a line-by-line review" of the assessment - The Alberta Court of Queen's Bench stated that the first part of the three part test for leave to appeal in s. 470(5) of the MGA was whether there was a question of law or jurisdiction - The court stated that "... questions of statutory interpretation are generally questions of law. In this case, the only issue before CARB was whether it had the power under s. 467(1) of the MGA to do anything other than change the impugned assessment. This is a matter of pure statutory interpretation." - Further, the question held extremely high precedential value - Alternatively, the question was jurisdictional - True questions of jurisdiction arose where the tribunal had to explicitly determine whether its statutory grant of power gave it the authority to decide a particular matter - Second, because it was important for jurisprudential purposes, the question was of sufficient importance to merit an appeal - However, the appeal did not meet the third requirement where it did not have a reasonable chance of success - The merits of an appeal should not be considered on a leave application - Selection of the standard of review informed the reasonable chance of success test - Here, the CARB was interpreting and applying its home statute - Therefore, regardless of whether the question was one of law or jurisdiction, the standard of review was presumed to be reasonableness - The CARB's interpretation of s. 467(1) was reasonable, and came within a range of possible, acceptable, defensible outcomes - The court's inherent jurisdiction was sufficiently broad to allow for simultaneous judicial review, notwithstanding the MGA's appeal regime - However, where there was "a clear right of appeal which would provide an adequate remedy, only in exceptional circumstances should judicial review be granted" (KCP Innovative Services Inc. et al. v. Alberta Securities Commission (2009 Alta. C.A.)) - Section 470 of the MGA provided an adequate alternative remedy for questions of law, namely a hearing on the merits - While that might not be the most expeditious or cost-effective procedure, it gave both sides an opportunity to be heard - See paragraphs 8 to 10, 70, 71, 97, 109 to 133 and 179.

Real Property Tax - Topic 7167

Assessment appeals (incl. complaints) - Applications or appeals to the courts - Leave to appeal - The applicant challenged a preliminary decision of a Municipal Composite Assessment Review Board (CARB) by seeking leave to appeal under s. 470 of the Municipal Government Act (MGA) - The applicant questioned, inter alia, whether the CARB erred in finding that the applicant failed to raise equity as an issue in its Complaint Form and was therefore precluded from raising it in the hearing on the merits - The Alberta Court of Queen's Bench held that the question raised an issue of law, namely whether failure to explicitly identify an issue on the Complaint Form was equivalent to not raising the issue at all - The question engaged matters of general law on pleadings and evidence - Alternatively, the CARB's decision could be characterized as an error that could be attributed to the application of an incorrect standard - In interpreting Complaint Forms, the CARB imposed an unreasonably strict standard upon taxpayers, which could be characterized as an error of law - The question was of sufficient importance where it clearly raised matters of substantial jurisprudential importance - The question did not concern interpretation of the Board's home statute or specific procedures - It concerned the construction of pleadings - As a result, it presented an issue that was of central importance to the legal system as a whole and outside of the CARB's specialized area of expertise - The appropriate standard of review was correctness - There was a reasonable chance of success on the issue - The general principle was that pleadings should be read liberally, whether in civil litigation or administrative disputes - The principle was not limited to applications to strike - On a liberal reading, the substance of the applicant's Complaint Form impliedly raised the issue of equity before the CARB - Denying the applicant an opportunity to raise equity because it was not separately spelled out as an "issue" represented unnecessary formalism and elevated form over substance - The Municipality's interpretation of the Complaint Form would never permit a taxpayer to raise equity as an issue before the CARB - Section 4 of the Complaint Form permitted the complainant to pick "matters" for a complaint by ticking one or more of 10 boxes that corresponded to specific matters - None of the boxes referred to equity as a separate "matter" - See paragraphs 15, 33 to 37, 75 to 79 and 134 to 147.

Real Property Tax - Topic 7167

Assessment appeals (incl. complaints) - Applications or appeals to the courts - Leave to appeal - The applicant challenged a preliminary decision of a Municipal Composite Assessment Review Board (CARB) by seeking leave to appeal under s. 470 of the Municipal Government Act (MGA) - The applicant questioned, inter alia, whether the CARB erred in finding that the Municipality had complied with the applicant's information request under s. 299 of the MGA - The Alberta Court of Queen's Bench granted leave to appeal on this question - It was a question of law - It could be restated as whether the CARB erred in finding that the Municipality's cursory reply satisfied the requirements of s. 299, a matter of statutory interpretation - The inquiry now focussed on whether the Municipality's reply satisfied the definition of "sufficient information" in s. 299(1.1) of the MGA - The interpretation of s. 299 potentially could apply widely to many future cases - The question was sufficiently important to grant leave for jurisprudential purposes - The appropriate standard of review was presumed to be reasonableness - The appeal had a reasonable chance of success where the CARB's decision appeared to contradict the purpose and express wording of s. 299 - See paragraphs 13, 38 to 40, 80 to 83, 98 and 148 to 159.

Real Property Tax - Topic 7167

Assessment appeals (incl. complaints) - Applications or appeals to the courts - Leave to appeal - On March 1, 2011, a Regional Municipality rendered an assessment notice to CNRL for approximately $2.4 billion for 2010 for machinery and equipment at CNRL's Horizon Oil Sands Project - Four days later, on March 5, and without notice to or input from CNRL, the Municipality issued an amended assessment notice for approximately $3.2 billion - CNRL challenged a preliminary decision of a Municipal Composite Assessment Review Board (CARB) by seeking leave to appeal under s. 470 of the Municipal Government Act (MGA) - CNRL questioned, inter alia, whether the CARB erred in finding that each party bore the onus to prove the included cost amount that they believed was correct - The Alberta Court of Queen's Bench granted leave to appeal on this question - It was clearly a question of law - It was also of sufficient importance because it carried immense jurisprudential value - The appropriate standard of review was reasonableness as the CARB resolved the issue by interpreting s. 467(1) of the MGA, its home statute - The court stated that, as a general proposition, a party who asserted a proposition had the onus of proving it - Further, "The statutory scheme established by s. 460 of the MGA clearly contemplates an appeal by the taxpayer, not the Municipality. In my view, this implies that the taxpayer bears the onus to show that the original assessment should be changed. This is an ordinary procedure on an appeal to an administrative tribunal. I thus see no basis for the CARB's decision. There is nothing in the MGA to suggest that each party bears the onus to prove its own number as correct." - The court held that the question of whether a Municipality or an Assessor was entitled to seek a further increase in an assessment at a CARB hearing was not expressly addressed by CARB and therefore it was not properly before the court - Nevertheless, the court did not think that the Municipality could seek a further increase in the assessment amount before the CARB - While the word "change" in s. 467(1) of the MGA implied both an upward and a downward adjustment, s. 460(3) expressly provided that only a taxpayer or an assessed person was entitled to make a complaint to the CARB - A complaint belonged to the taxpayer, not the Municipality - It gave the taxpayer an opportunity to demonstrate what the correct number should be - The Municipality could not then come in and ask the CARB to change the assessment to an altogether different number; it could only defend the assessed amount as correct - See paragraphs 16, 41 to 43, 72 to 74 and 160 to 167.

Real Property Tax - Topic 7167

Assessment appeals (incl. complaints) - Applications or appeals to the courts - Leave to appeal - The applicant challenged a preliminary decision of a Municipal Composite Assessment Review Board (CARB) by seeking leave to appeal under s. 470 of the Municipal Government Act (MGA) - At issue, inter alia, was whether the applicant could seek leave on the issue of bias, even though the CARB had not been asked to rule on the issue - The Alberta Court of Queen's Bench held that it was appropriate for it to deal with the question of reasonable apprehension of bias/institutional independence raised by the applicant where, inter alia, the institutional bias allegation was not something that the CARB could remedy and the CARB's opinion of the allegations would not be of assistance - As well, the full record on the issue was before the court - Further, by virtue of its inherent jurisdiction, the court had a discretionary power to conduct judicial review on issues that were not raised before the administrative tribunal and it was likely that the same reasoning applied to a statutory appeal - The court denied leave to appeal on the issue - The applicant raised questions about the institutional independence because the CARB members did not have security of tenure under the MGA, only by virtue of the Municipality's bylaw appointing the members, and because the Clerk who administered the CARB's administration was appointed by the Municipality's Chief Administrative Officer - Bias raised both a question of law and jurisdiction - Further, the issue was of sufficient importance - Every taxpayer filing a complaint before the CARB had an interest in a fair and impartial hearing - If bias was found to exist, this would affect practice and procedure for every future complainant - The issue was clearly important for jurisprudential purposes - However, the question did not have a reasonable chance of success - Clear provisions provided adequate financial security and security of tenure - The Clerk had limited opportunity to affect the outcome of hearings - See paragraphs 44 to 48, 84 to 93, 104 to 105 and 168 to 177.

Real Property Tax - Topic 7204

Assessment appeals - Practice - Issues on appeal - [See third Real Property Tax - Topic 7167 ].

Real Property Tax - Topic 7207

Assessment appeals - Practice - Availability of declaration - [See second Real Property Tax - Topic 7167 ].

Real Property Tax - Topic 7208

Assessment appeals (incl. complaints) - Practice - Procedure - [See third Real Property Tax - Topic 7167 ].

Real Property Tax - Topic 7208

Assessment appeals (incl. complaints) - Practice - Procedure - The Alberta Court of Queen's Bench stated that "The intent of s. 299 [of the Municipal Government Act] is clear: it is designed to facilitate disclosure of all relevant information to the taxpayer so as to avoid 'trial by ambush' before the CARB [Composite Assessment Review Board]. The disclosure provisions are extremely broad. They effectively require a full report. The Municipality must deliver or provide access to all information relevant to the assessment calculation, not just that requested by the taxpayer. If it were as the CARB says, the taxpayer would forever be caught in a vicious circle, where it would not have access to the information it never knew existed because it did not specifically request that information in the first place. Not only would this situation be absurd, it would also effectively negate the taxpayer's fundamental right to know the case against them." - See paragraph 157.

Real Property Tax - Topic 7220

Assessment appeals (incl. complaints) - Procedure - Judicial review - The applicant challenged two preliminary decisions of a Municipal Composite Assessment Review Board by seeking leave to appeal under s. 470 of the Municipal Government Act - The Alberta Court of Queen's Bench stated that, on review, it had an inherent power to reframe the questions raised by the parties - See paragraph 106.

Words and Phrases

Sufficient information - The Alberta Court of Queen's Bench discussed the meaning of this phrase as found in s. 299 of the Municipal Government Act, R.S.A. 2000, c. M-26 - See paragraphs 148 to 159.

Cases Noticed:

Teck-Bullmoose Coal Inc. v. Commissioner of Mineral Tax (B.C.), [2000] B.C.T.C. 743 (S.C.), refd to. [para. 31].

Jonas v. Gilbert (1881), 5 S.C.R. 356, refd to. [para. 35].

Moses et al. v. Agriculture Financial Services Corp. Appeal Committee (2005), 375 A.R. 225 (Q.B.), refd to. [para. 42].

Alberta (Minister of Municipal Affairs) et al. v. TransCanada Keystone Pipeline Limited Partnership et al., [2011] A.R. Uned. 763 (Q.B.), refd to. [para. 56].

Rendez-Vous Inn Ltd. v. St. Paul (Town) et al. (1999), 253 A.R. 276 (Q.B.), refd to. [para. 74].

Canadian Pacific Ltd. v. Matsqui Indian Band et al., [1995] 1 S.C.R. 3; 177 N.R. 325; 122 D.L.R.(4th) 129, refd to. [para. 87].

R. v. Valente, [1985] 2 S.C.R. 673; 64 N.R. 1; 14 O.A.C. 79; 24 D.L.R.(4th) 161, appld. [para. 88].

Paramount Energy Operating Corp. et al. v. Energy and Utilities Board (Alta.) (2004), 354 A.R. 375; 329 W.A.C. 375; 2004 ABCA 273, refd to. [para. 102].

Brosseau v. Alberta Securities Commission - see Barry and Brosseau v. Alberta Securities Commission.

Barry and Brosseau v. Alberta Securities Commission, [1989] 1 S.C.R. 301; 93 N.R. 1; 96 A.R. 241, refd to. [para. 105].

Ocean Port Hotel Ltd. v. Liquor Control 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. 105].

Assessor of Area #1 - Capital v. University of Victoria et al., [2010] B.C.T.C. Uned. 133; 2010 BCSC 133, refd to. [para. 106].

Hopewell Development (Leduc) Inc. v. Municipal Government Board (Alta.), [2009] A.R. Uned. 319; 2009 ABCA 391, refd to. [para. 106].

Northern Sunrise (County) v. De Meyer et al., [2008] A.R. Uned. 78; 2008 ABCA 191, refd to. [para. 106].

Pembina Institute for Appropriate Development et al. v. Energy Resources Conservation Board (Alta.) et al., [2009] A.R. Uned. 142; 2009 ABCA 322, refd to. [para. 109].

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. 110].

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. 111].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 112].

Pezim v. British Columbia (Superintendent of Brokers) - see Pezim v. British Columbia Securities Commission et al.

Pezim v. British Columbia Securities Commission et al., [1994] 2 S.C.R. 557; 168 N.R. 321; 46 B.C.A.C. 1; 75 W.A.C. 1, refd to. [para. 113].

Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Association - see Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al.

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, appld. [para. 117].

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. 117].

Omega2 Corp. v. Edmonton (City) et al., [2005] A.R. Uned. 650; 2005 ABCA 449, refd to. [para. 119].

845971 Alberta Ltd. v. Grande Prairie (City) et al., [2010] A.R. Uned. 187; 2010 ABCA 135, refd to. [para. 119].

Globexx Properties Ltd. v. Edmonton (City) (2011), 523 A.R. 204; 2011 ABQB 464, refd to. [para. 119].

Gendron v. Calgary (City) et al., [2009] A.R. Uned. 313; 2009 ABCA 367, refd. to.  [para. 122].

Toronto (City) et al. v. Canadian Union of Public Employees, Local 79 et al., [2003] 3 S.C.R. 77; 311 N.R. 201; 179 O.A.C. 291; 2003 SCC 63, refd to. [para. 122].

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. 123].

Associated Developers Ltd. v. Edmonton (City) et al. (2011), 527 A.R. 287; 2011 ABQB 592, refd to. [para. 124].

KCP Innovative Services Inc. et al. v. Alberta Securities Commission (2009), 448 A.R. 268; 447 W.A.C. 268; 2009 ABCA 102, folld. [para. 131].

Precision Drilling Corporation v. Calgary (City) - see JT Tax Consulting Ltd. v. Calgary (City) et al.

JT Tax Consulting Ltd. v. Calgary (City) et al. (2011), 523 A.R. 263; 2011 ABQB 503, refd to. [para. 131].

ATCO Electric Ltd. v. Manning Rural Electrification Association Ltd., [2011] A.R. Uned. 392; 2011 ABQB 333, refd to. [para. 141].

Dostie v. Royal & Sunalliance Insurance Co. of Canada et al. (2004), 277 N.B.R.(2d) 203; 727 A.P.R. 203; 2004 NBQB 195 (T.D.), refd to. [para. 141].

Non-Marine Underwriters, Lloyd's London v. Scalera, [1997] B.C.T.C. Uned. G60; 1997 CanLII 12605 (S.C.), refd to. [para. 141].

R. v. Vandenberg (J.B.) (2010), 491 A.R. 167; 2010 ABQB 261, refd to. [para. 160].

Polish Alliance of Canada et al. v. Polish Association of Toronto Ltd. et al., [2010] O.A.C. Uned. 732; 2010 ONSC 5250, refd to. [para. 160].

United Food and Commercial Workers, Local 1400 v. Westfair Foods Ltd. et al. (2005), 263 Sask.R. 184; 2005 SKQB 187, refd to. [para. 160].

TimberWest Forest Corp. Retirement Plan for Salaried Employees et al. v. Schmidt, [2002] B.C.T.C. Uned. 445; 2002 BCSC 831, refd to. [para. 160].

Robins v. National Trust Co., [1927] A.C. 515; 2 D.L.R. 97 (P.C.), refd to. [para. 164].

Les Immeubles BP Ltee v. Ville D'Anjou et al (1978), 4 M.P.L.R. 1 (Que. S.C.), refd to. [para. 166].

Lavesta Area Group Inc. v. Energy and Utilities Board (Alta.) et al. (2012), 522 A.R. 88; 544 W.A.C. 88; 2011 ABCA 108, refd to. [para. 172].

Statutes Noticed:

Municipal Government Act, R.S.A. 2000, c. M-26, sect. 299 [para. 156]; sect. 460(3) [para. 166]; sect. 467(1) [para. 114]; sect. 470(5) [para. 7].

Authors and Works Noticed:

Bryant, Alan W., Lederman, Sidney N., and Fuerst, Michelle K., The Law of Evidence in Canada (3rd Ed. 2009), p. 113 [para. 164].

Jones, David Phillip, and de Villars, Anne S., Principles of Administrative Law (5th Ed. 2009), p. 450 [para. 168].

Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (2nd Ed. 1999), pp. 57 to 59, 63 [para. 163].

Wade, William, Administrative Law (9th Ed. 2004), p. 943 [paras. 111, 150].

Counsel:

Gilbert J. Ludwig (Wilson Laycraft), for the applicant;

Carol M. Zukiwski (Reynolds, Mirth, Richards & Farmer LLP), for the respondent, the Regional Municipality of Wood Buffalo;

Gwendolyn J. Stewart-Palmer (Shores Jardine LLP), for the respondent, the Regional Municipality of Wood Buffalo Composite Assessment Review Board.

This application for leave to appeal was heard on September 30, 2011, by Sulyma, J., of the Alberta Court of Queen's Bench, Judicial District of Ft. McMurray, who delivered the following decision on March 14, 2012.