Edmonton (City) v. Edmonton (Assessment Review Board) et al., 2015 ABQB 103

• Judge: Verville, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: December 17, 2014
• Citations: 2015 ABQB 103;(2015), 610 A.R. 241 (QB)

Edmonton v. Assessment Review Bd. (2015), 610 A.R. 241 (QB)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. MR.078

The City of Edmonton (applicant) v. The City of Edmonton Assessment Review Board, and Summerside Residents Association, as represented by Altus Group Limited (respondents)

(1403 04067; 2015 ABQB 103)

Indexed As: Edmonton (City) v. Edmonton (Assessment Review Board) et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Verville, J.

February 10, 2015.

Summary:

The Summerside Residents Association (SRA) operated a Community Recreational Facility in the City of Edmonton. SRA applied for a full exemption from municipal property taxes. The City denied the application. SRA filed a complaint with the City's Assessment Review Board. The Board found that SRA was entitled to a 100% exemption pursuant to s. 362(1)(n) of the Municipal Government Act. The City applied for leave to appeal the Board's decision.

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

Courts - Topic 89

Stare decisis - Authority of judicial decisions - Prior decisions of same court - Boards and tribunals - [See first Real Property Tax - Topic 7167 ].

Real Property Tax - Topic 6001

Exemptions - General - Interpretation of exemptions - [See third, fourth and fifth Real Property Tax - Topic 7167 ].

Real Property Tax - Topic 7103

Assessment appeals (incl. complaints) - Provincially or municipally appointed tribunal or board - Duties and powers - [See first and second Real Property Tax - Topic 7167 ].

Real Property Tax - Topic 7161

Assessment appeals (incl. complaints) - Applications or appeals to the courts - Appeal on a question of law - [See all Real Property Tax - Topic 7167 ].

Real Property Tax - Topic 7167

Assessment appeals (incl. complaints) - Applications or appeals to the courts - Leave to appeal - The Summerside Residents Association (SRA) operated a Community Recreational Facility in the City of Edmonton - SRA applied for a full exemption from municipal property taxes - The City denied the application - SRA filed a complaint with the City's Assessment Review Board - In 2012, the Board found that SRA was not entitled to an exemption - In 2013, the Board found that SRA was entitled to a 100% exemption - The City applied for leave to appeal the Board's 2013 decision, arguing that the Board erred in finding that the property was not "restricted" by incorrectly interpreting the Community Organization Property Tax Exemption Regulation - In attempting to characterize this ground of appeal as a question of law, the City argued that the 2012 decision was correct and the Board did not address or explain why it departed from that decision - The Alberta Court of Queen's Bench dismissed the application - Assuming that the Board's alleged failure to explain its departure from the 2012 decision amounted to a question of law, the argument had no reasonable chance of success - The Board discussed the basis for the 2012 decision and, on the face of the decision, explained its own reasoning - Further, the doctrine of stare decisis did not apply generally to administrative tribunals - See paragraphs 47 and 48.

Real Property Tax - Topic 7167

Assessment appeals (incl. complaints) - Applications or appeals to the courts - Leave to appeal - The Summerside Residents Association (SRA) operated a Community Recreational Facility in the City of Edmonton - SRA applied for a full exemption from municipal property taxes - The City denied the application - SRA filed a complaint with the City's Assessment Review Board - The Board found that SRA was entitled to a 100% exemption - In rejecting the City's argument that the Facility was "restricted" property under the Community Organization Property Tax Exemption Regulation (COPTER), the Board accepted an opinion provided by White - The City applied for leave to appeal, arguing that the Board incorrectly interpreted COPTER - In attempting to characterize this ground of appeal as a question of law, the City argued that the Board erred by relying on the opinion of White, who was an administrator from a department other than the one responsible for administering the legislation, and there was no evidence that the opinion was widely circulated or endorsed - The Alberta Court of Queen's Bench dismissed the application - Section 464(1) of the Municipal Government Act provided that the Board was not bound by the rules of evidence or any other law applicable to court proceedings, and had the power to determine the admissibility, relevance and weight of any evidence - The weight attributed to White's opinion was an issue of fact or mixed fact and law - It was not a question of significant importance and the ground had little prospect of success - See paragraphs 49 to 53.

Real Property Tax - Topic 7167

Assessment appeals (incl. complaints) - Applications or appeals to the courts - Leave to appeal - The Summerside Residents Association (SRA) operated a Community Recreational Facility in the City of Edmonton - SRA applied for a full exemption from municipal property taxes - The City denied the application - SRA filed a complaint with the City's Assessment Review Board - The Board rejected the City's argument that the Facility was "restricted" property under the Community Organization Property Tax Exemption Regulation (COPTER) and found that SRA was entitled to a 100% exemption - The City applied for leave to appeal, arguing that the Board incorrectly interpreted COPTER by (a) ignoring the clear and unambiguous meaning of the legislation by equating the ownership of property by SRA with the use of property by members of SRA; and (b) finding an absurdity where one did not exist and applying an incorrect legal test to determine whether the property was restricted within the membership of SRA - The Alberta Court of Queen's Bench dismissed the application - The Board interpreted the legislation and applied it to the facts before it - Despite the City's attempt to identify extricable errors of law, the legal issue did not stand alone and could not be extricated from the factual context in which it had to be considered - This ground of appeal amounted to a question of mixed fact and law - Even assuming there was an extricable question of law, there was no reasonable chance of success - See paragraphs 54 to 58.

Real Property Tax - Topic 7167

Assessment appeals (incl. complaints) - Applications or appeals to the courts - Leave to appeal - The Summerside Residents Association (SRA) operated a Community Recreational Facility in the City of Edmonton - SRA applied for a full exemption from municipal property taxes - The City denied the application - SRA filed a complaint with the City's Assessment Review Board - The Board found that SRA was entitled to a 100% exemption - It found that the majority of users of the property were under age 18 for at least 60% of the time that the Property was in use, and therefore the Facility was not "restricted" property under s. 14.1(2)(b) of the Community Organization Property Tax Exemption Regulation - The City applied for leave to appeal, arguing that the Board applied the wrong legal test in failing to consider the duration of time that the property was in use, and in applying a substantial compliance test for determining whether evidential requirements for an exemption were satisfied - The Alberta Court of Queen's Bench dismissed the application - If there was an error here, it was an error of mixed fact and law or an error of fact - The Board recognized that s. 14.1(2)(b) required a two pronged calculation - It was the application of the legal rule to the evidence before the Board or its calculation which might be in question - The City's argument related to some extent to the quality of evidence before the Board and the weight the Board attached to that evidence, which were not questions of law - Assuming that the alleged calculation error was a question of law, the City's argument had no reasonable chance of success - While the Board did not have hourly use figures before it, SRA had provided monthly attendance numbers and the Board purported to make a determination based on a fraction of the year encompassing the most active months - See paragraphs 59 to 63.

Real Property Tax - Topic 7167

Assessment appeals (incl. complaints) - Applications or appeals to the courts - Leave to appeal - Brookfield Residential Properties Inc. developed a Community Recreational Facility in the City of Edmonton - Brookfield transferred ownership of the Facility to the Summerside Residents Association (SRA) and loaned SRA $3 million to build amenities and operate programs - Brookfield's loan was protected by a series of Powers of Attorney (POAs) - SRA applied for a full exemption from municipal property taxes - The City denied the application - SRA filed a complaint with the City's Assessment Review Board - The Board found that SRA was entitled to a 100% exemption - The City applied for leave to appeal, arguing that the Board erred in finding that the property was "held by" SRA under ss. 5 and 14.1(1) of the Community Organization Property Tax Exemption Regulation - In attempting to characterize this as a question of law, the City argued that the Board (a) incorrectly interpreted "lease, licence or permit" in s. 5; (b) failed to apply the correct legal test under s. 5; and (c) failed to place the evidential onus of proving that the property was not subject to a "lease, licence or permit" on SRA - The Alberta Court of Queen's Bench dismissed the application - The Board examined the powers and rights associated with the POAs and determined that they essentially amounted to security for financing - The issue really related to the legal effect and practical impact of the documents in evidence before the Board, and the application of the legislation to those findings - This was a question of mixed fact and law - To the extent that the City raised a question of law, there was no reasonable chance of success - The Board referred to the relevant statutory provision and there was nothing to suggest that it misapprehended its meaning - See paragraphs 64 to 71.

Real Property Tax - Topic 7251

Assessment appeals (incl. complaints) - Evidence and proof - General - [See second Real Property Tax - Topic 7167 ].

Cases Noticed:

Leon's Furniture Ltd. v. Information and Privacy Commissioner (Alta.) et al. (2011), 502 A.R. 110; 517 W.A.C. 110; 2011 ABCA 94, refd to. [para. 3].

Altus Group v. Edmonton (City), 2012 ECARB 1304, refd to. [para. 20].

Altus Group v. Calgary (City), [2010] AMGBO No. 113, refd to. [para. 23].

Cypress (County) v. Municipal Government Board (Alta.) et al. (2000), 278 A.R. 360; 2000 ABQB 807, refd to. [para. 31].

Associated Developers Ltd. v. Edmonton (City) et al. (2011), 527 A.R. 287; 2011 ABQB 592, refd to. [para. 34].

Masellis et al. v. Subdivision and Development Appeal Board (Edmonton (City)) et al. (2011), 505 A.R. 231; 522 W.A.C. 231; 2011 ABCA 157, refd to. [para. 34].

Simonelli v. Rocky View No. 44 (Municipal District) (2004), 350 A.R. 286; 2004 ABQB 45, refd to. [para. 34].

Edmonton (City) v. Edmonton (Composite Assessment Review Board) et al. (2012), 535 A.R. 215; 2012 ABQB 171, refd to. [para. 35].

ATCO Power Canada Ltd. v. Special Areas Board (Alta.) et al., [2014] A.R. Uned. 729; 2014 ABQB 716, refd to. [para. 35].

Altus Group Ltd. v. Calgary (Composite Assessment Review Board) et al. (2011), 528 A.R. 138; 2011 ABQB 739, refd to. [para. 35].

Edmonton (City) v. Edmonton (Composite Assessment Review Board) et al. (2012), 534 A.R. 110; 2012 ABQB 118, refd to. [para. 35].

Omega2 Corp. v. Edmonton (City) et al., [2005] A.R. Uned. 650; 24 M.P.L.R.(4th) 36; 2005 ABCA 449, refd to. [para. 36].

845971 Alberta Ltd. v. Grande Prairie (City) et al., [2010] A.R. Uned. 187; 2010 ABCA 135, refd to. [para. 36].

Carleo Investments Ltd. v. Strathcona (County) et al., [2014] A.R. Uned. 304; 28 M.P.L.R.(5th) 173; 2014 ABCA 302, refd to. [para. 37].

Alberta (Minister of Municipal Affairs) et al. v. TransCanada Keystone Pipeline Limited Partnership et al., [2011] A.R. Uned. 763; 86 M.P.L.R.(4th) 268; 2011 ABQB 460, refd to. [para. 38].

Edmonton (City) v. Edmonton (City) (Composite Assessment Review Board) et al., [2012] A.R. Uned. 458; 2012 ABQB 439, refd to. [para. 38].

McCauley Community League v. Edmonton (City) et al., [2011] A.R. Uned. 547; 91 M.P.L.R.(4th) 103; 2011 ABCA 327, refd to. [para. 39].

Altus Group Ltd. v. Calgary (City) et al. (2012), 570 A.R. 1; 15 M.P.L.R.(5th) 254; 2013 ABQB 608, refd to. [para. 39].

Alberta v. McGeady et al. (2014), 585 A.R. 311; 2014 ABQB 104, affd. (2015), 593 A.R. 147; 637 W.A.C. 147; 2015 ABCA 54, refd to. [para. 41].

Big Loop Cattle Co. et al. v. Energy Resources Conservation Board (Alta.) et al. (2010), 490 A.R. 246; 497 W.A.C. 246; 2010 ABCA 328, refd to. [para. 43].

Domtar Inc. v. Commission d'appel en matiére de lésions professionelles et autres, [1993] 2 S.C.R. 756; 154 N.R. 104, refd to. [para. 48].

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].

University of Alberta v. Edmonton (City) et al. (2005), 363 A.R. 378; 343 W.A.C. 378; 2005 ABCA 147, refd to. [para. 56].

Pincher Creek (Town) v. Municipal Government Board (Alta.) et al. (2007), 425 A.R. 63; 418 W.A.C. 63; 2007 ABCA 360, refd to. [para. 56].

Edmonton (City) v. North Pointe Community Church (2008), 444 A.R. 390; 2008 ABQB 110, refd to. [para. 56].

McLean v. British Columbia Securities Commission, [2013] 3 S.C.R. 895; 452 N.R. 340; 347 B.C.A.C. 1; 593 W.A.C. 1; 2013 SCC 67, refd to. [para. 57].

Boardwalk Reit LLP v. Edmonton (City) et al. (2008), 437 A.R. 347; 433 W.A.C. 347; 2008 ABCA 220, refd to. [para. 63].

Québec (Communauté urbaine) et autres v. Corporation Notre-Dame de Bon-Secours, [1994] 3 S.C.R. 3; 171 N.R. 161; 63 Q.A.C. 161, refd to. [para. 68].

Counsel:

Cameron J. Ashmore and Amy Cheuk (City of Edmonton), for the applicant;

Kelsey Meyer and Wai Lam (William) Wong (Bennett Jones LLP), for the respondents, Summerside Residents Association;

Kate L. Hurlburt and Tracy L. Esch (Emery Jamieson LLP), for the respondents, Composite Assessment Review Board.

This application for leave to appeal was heard on December 17, 2014, before Verville, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on February 10, 2015.