Gardentree Village Inc. v. Winnipeg City Assessor et al., (2009) 240 Man.R.(2d) 317 (CA)

• Judge: Hamilton, Freedman and Chartier, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: June 03, 2009
• Jurisdiction: Manitoba
• Citations: (2009), 240 Man.R.(2d) 317 (CA);2009 MBCA 79

Gardentree Village v. Assessor (2009), 240 Man.R.(2d) 317 (CA);

      456 W.A.C. 317

MLB headnote and full text

Temp. Cite: [2009] Man.R.(2d) TBEd. AU.002

Gardentree Village Inc. (appellant/appellant) v. The Assessor for the City of Winnipeg (respondent/respondent) and The Municipal Board of Manitoba (respondent)

(AI 06-30-06559; 2009 MBCA 79)

Indexed As: Gardentree Village Inc. v. Winnipeg City Assessor et al.

Manitoba Court of Appeal

Hamilton, Freedman and Chartier, JJ.A.

August 4, 2009.

Summary:

Gardentree Village Inc. obtained leave to appeal a decision of the Municipal Board of Manitoba which refused Gardentree's request to fix the assessed value of the subject property at 90% of the agreed upon market value (see [2008] Man.R.(2d) Uned. 94).

The Manitoba Court of Appeal allowed the appeal and remitted the matter to the Board for reconsideration in accordance with the principles set out in the following reasons.

Real Property Tax - Topic 7120

Assessment appeals (incl. complaints) - Provincially or municipally appointed tribunal or board - Remedies - Gardentree Village Inc. appealed a decision of the Municipal Board of Manitoba which refused Gardentree's request to fix the assessed value of the subject property at 90% of the agreed upon market value - Gardentree asserted that the Board erred in concluding that the only remedy open to it, if Gardentree's equity considerations argument had been accepted, was to order a "redo" assessment under s. 60(3) of the Municipal Assessment Act - The assessor's position was that the Board could only use the s. 60(1) adjustment remedy if it was convinced that the assessed value did not reflect the market value - The assessor argued that if there were adjustments to be made as a result of equity considerations, only the s. 60(3) "redo" remedy was available - The Manitoba Court of Appeal allowed the appeal - There was no merit to the assessor's arguments - The equity factor (in s. 18 and also in s. 60(2)) was integral to the determination of assessed value - A correct assessment would only be attained following the two-step process, which included the equity factor - As a result, the Board was not limited to a s. 60(3) "redo" assessment should it decide that an assessment was erroneous because of equity considerations: it could use the general powers found in s. 60(1) - See paragraphs 12 to 15.

Real Property Tax - Topic 7258

Assessment appeals (incl. complaints) - Evidence and proof - Burden of proof regarding amount of assessment - Gardentree Village Inc. appealed a decision of the Municipal Board of Manitoba which refused Gardentree's request to fix the assessed value of the subject property at 90% of the agreed upon market value - Gardentree asserted that the Board erred in concluding that Gardentree had the onus of establishing that the assessed value of the subject property did not bear a fair and just relation to the assessed value of other assessable properties (the equity factor (Municipal Assessment Act, s. 18)) - The Manitoba Court of Appeal allowed the appeal - Section 59(5) of the Act placed the burden of proof on the assessor in matters regarding the amount of the "assessed value" - The equity factor was an integral component to the determination of "assessed value" - As a result, if the equity factor was a matter at issue with respect to the "assessed value", the burden of proof remained on the assessor, as set out in s. 59(5) - See paragraphs 5 to 11.

Cases Noticed:

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. 3].

Hill-Everest Holdings Ltd. v. Winnipeg City Assessor et al. (2009), 245 Man.R.(2d) 1; 466 W.A.C. 1; 2009 MBCA 57, refd to. [para. 3].

Winnipeg City Assessor et al. v. Licharson et al. (2005), 195 Man.R.(2d) 234; 351 W.A.C. 234; 2005 MBCA 95, refd to. [para. 3].

Kisil Hotel Ltd. v. Winnipeg City Assessor (2007), 220 Man.R.(2d) 179; 407 W.A.C. 179; 2007 MBCA 114, refd to. [para. 3].

Shier v. Manitoba Public Insurance Corp. et al. (2008), 231 Man.R.(2d) 198; 437 W.A.C. 198; 2008 MBCA 97, refd to. [para. 4].

The Pas (Town) v. Skeena Cellulose Inc. (1995), 107 Man.R.(2d) 52; 109 W.A.C. 52 (C.A.), dist. [para. 5].

Premark Canada Inc. v. Provincial Municipal Assessor (Man.) (1994), 95 Man.R.(2d) 196; 70 W.A.C. 196 (C.A.), refd to. [para. 6].

Flanders (John A.) Ltd. v. Winnipeg City Assessor et al. (1993), 83 Man.R.(2d) 288; 36 W.A.C. 288 (C.A.), refd to. [para. 10].

Leila Farms Ltd. v. Winnipeg City Assessor (1997), 115 Man.R.(2d) 60; 139 W.A.C. 60 (C.A.), refd to. [para. 10].

Statutes Noticed:

Municipal Assessment Act, S.M. 1989-90, c. 24; C.C.S.M., c. M-226, sect. 18 [para. 8]; sect. 59(5) [para. 7]; sect. 60(1), sect. 60(2), sect. 60(3) [para. 13].

Counsel:

M. Newman, for the appellant;

D.A.M. Pambrun, for the respondent, the Assessor for the City of Winnipeg;

M.K. Stonyk, for the respondent, the Municipal Board of Manitoba.

This appeal was heard on June 3, 2009, by Hamilton, Freedman and Chartier, JJ.A., of the Manitoba Court of Appeal. The following judgment of the Court of Appeal was delivered by Chartier, J.A., on August 4, 2009.