Hiscock Estate v. St. John's (City),

• Jurisdiction: Newfoundland and Labrador
• Judge: Paquette, J.
• Citation: (2014), 356 Nfld. & P.E.I.R. 184 (NLTD(G))
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Date: 10 December 2013

Hiscock Estate v. St. John's (2014), 356 Nfld. & P.E.I.R. 184 (NLTD(G));

    1108 A.P.R. 184

MLB headnote and full text

Temp. Cite: [2014] Nfld. & P.E.I.R. TBEd. OC.007

Estate of Geraldine V. Hiscock, as represented by Judith Frizzell, Executrix (appellant) v. City of St. John's (respondent)

(201301G1956; 2014 NLTD(G) 110)

Indexed As: Hiscock Estate v. St. John's (City)

Newfoundland and Labrador Supreme Court

Trial Division (General)

Paquette, J.

September 29, 2014.

Summary:

Vacant land owned by the Hiscock Estate was valued, for municipal tax assessment purposes, at over $5 million. The Executrix appealed to the Assessment Review Commissioner. Following the appeal hearing, the Commissioner assessed the land at $3.8 million. The Executrix appealed, pursuant to s. 39 of the Assessment Act. She asserted that she was denied procedural fairness, and that the Commissioner incorrectly applied the law or, alternatively, exceeded his jurisdiction.

The Newfoundland and Labrador Supreme Court, Trial Division (General) allowed the appeal. The Commissioner erred in law and exceeded his jurisdiction in failing to accord the Executrix the procedural fairness necessary in the conduct of the appeal hearing. Pursuant to s. 39(5) of the Act, the matter was referred back to the Commissioner for a full rehearing as to whether the assessment was in accordance with s. 17 of the Act.

Administrative Law - Topic 549

The hearing and decision - Decisions of the tribunal - Reasons for decision - Sufficiency of - [See Real Property Tax - Topic 7109].

Administrative Law - Topic 681

The hearing and decision - Rehearing - General - [See Real Property Tax - Topic 7152].

Administrative Law - Topic 2266

Natural justice - The duty of fairness - What constitutes procedural fairness - [See both Real Property Tax - Topic 7102].

Administrative Law - Topic 2267

Natural justice - The duty of fairness - Reasonable expectation or legitimate expectation - [See second Real Property Tax - Topic 7102].

Administrative Law - Topic 2493

Natural justice - Procedure - At hearing - Right to make submissions - [See second Real Property Tax - Topic 7102].

Real Property Tax - Topic 7003

Assessment appeals - General principles - Scope of appeal or standard of review - The Assessment Review Commissioner assessed the subject property at $3.8 million - The appellant took issue with the correctness of the decision - She asserted that she was denied procedural fairness in the conduct of the appeal hearing - She also submitted that the Commissioner incorrectly applied the law respecting municipal tax assessment or, alternatively, exceeded his jurisdiction in his mistaken interpretation of the material circumstances of the property - The Newfoundland and Labrador Supreme Court, Trial Division (General), found that the standard of review applicable in these proceedings was that of correctness - See paragraphs 7 to 10.

Real Property Tax - Topic 7102

Assessment appeals (incl. complaints) - Provincially or municipally appointed tribunal or board - Procedure (incl. adjournments) - The change in the valuation of vacant land belonging to an Estate was "dramatic", going from $243,100 to over $5 million, for municipal tax assessment purposes - The Executrix appealed to the Assessment Review Commissioner - Following the appeal hearing, the Commissioner assessed the land at $3.8 million - The Commissioner relied upon documentation prepared by the City, dealing with the zoning breakdown and comparable sales - The Executrix appealed, asserting that she was denied procedural fairness - The Newfoundland and Labrador Supreme Court, Trial Division (General), in allowing the appeal, stated that "a significant factor to be taken into consideration in determining the appropriate level of procedural fairness, is the importance of the decision to the taxpayer. Here the reassessment places a dramatically different financial burden on the Estate. ... The circumstances also reveal that [the Executrix] had been given some assurance that a Senior Assessor would be present to assist her at the hearing ... . Of central importance to procedural fairness is the opportunity to fully present one's case before a tribunal. ... It follows that procedural fairness includes the requirement that the Executrix know the City's reasons for a reassessment of over $5 million." - See paragraphs 23 to 27.

Real Property Tax - Topic 7102

Assessment appeals (incl. complaints) - Provincially or municipally appointed tribunal or board - Procedure (incl. adjournments) - An Executrix appealed the municipal taxation reassessment of a large tract of vacant land owned by the Estate - The change in the valuation was "dramatic", going from $243,100 to over $5 million - Following the appeal hearing, the Assessment Review Commissioner assessed the land at $3.8 million - The Commissioner relied upon documentation prepared by the City, dealing with the zoning breakdown and comparable sales - The Newfoundland and Labrador Supreme Court, Trial Division (General), held that the Executrix was not given the level of procedural fairness that she was entitled to - The Court considered the significant increase in the property's value; the complexity of the zoning; the rights at stake for the beneficiaries of the Estate; the legitimate expectation held by the Executrix that she would be assisted at the hearing by a Senior Assessor; and the non-disclosure of key information, thereby denying her the opportunity to prepare for the appeal - Procedural fairness could have been addressed with a postponement - The breach of the rules of natural justice through the denial of procedural fairness constituted an error of jurisdiction, necessitating that the Commissioner's decision be vacated and the matter returned to the Commissioner for a full rehearing - See paragraphs 28 to 31.

Real Property Tax - Topic 7105

Assessment appeals - Provincially or municipally appointed tribunal or board - Jurisdiction - General - [See second Real Property Tax - Topic 7102].

Real Property Tax - Topic 7109

Assessment appeals - Provincially or municipally appointed tribunal or board - Jurisdiction - Respecting evidence of value - An Executrix appealed the municipal taxation reassessment of a large tract of vacant land owned by the Estate - Following the appeal hearing, the Assessment Review Commissioner valued the land at $3.8 million - The Executrix submitted that the Commissioner erred in law through "speculation" as to the land's future use as opposed to actual use, as mandated by s. 17 of the Assessment Act (Nfld. and Lab.) - It was the City's position that the Commissioner appropriately considered the comparable sales - The Executrix was never provided the comparable sales - The Newfoundland and Labrador Supreme Court, Trial Division (General), referred the matter back to the Commissioner for a full rehearing - The Commissioner "shall provide sufficient explanation in his decision as to identify the basis for his valuation" - Nothing in the Commissioner's decision explained the manner in which he factored into his analysis the existing prohibitions on development or the property's relationship to the characteristics of the comparables in the marketplace - It was accordingly not possible for the Executrix or the Court to ascertain whether the Commissioner's conclusion properly reflected the actual value of the property as required by s. 17 - See paragraphs 33 to 49.

Real Property Tax - Topic 7152

Assessment appeals - Applications or appeals to the courts - Powers of courts - General - An Executrix appealed the municipal taxation reassessment of a large tract of vacant land owned by the Estate - She requested that the matter be referred back to an alternate Commissioner - The Newfoundland and Labrador Supreme Court, Trial Division (General), referred the matter back to the same Commissioner, pursuant to s. 39(5) of the Assessment Act, for a full rehearing as to whether the property assessment was in accordance with s. 17 - No facts were advanced to demonstrate a conflict of interest of the Commissioner or to identify any other disqualifying factors such as a reasonable apprehension of bias and no legal authority was provided to support the request for a new Commissioner - "While it is foreseeable that circumstances may present in which an alternate Commissioner be named for a rehearing, no such grounds have been raised or established here such as would prevent the Commissioner from embarking on a new hearing in accordance with the Act and the reasons set out in this decision." - See paragraph 50.

Real Property Tax - Topic 7161

Assessment appeals - Applications or appeals to the courts - Appeal on a question of law - [See Real Property Tax - Topic 7109].

Cases Noticed:

Labatt Brewing Co. et al. v. St. John's (City) (2011), 315 Nfld. & P.E.I.R. 100; 981 A.P.R. 100; 2011 NLCA 75, refd to. [para. 7].

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 8].

Conseil de la magistrature (N.-B.) v. Moreau-Bérubé (2002), 281 N.R. 201; 245 N.B.R.(2d) 201; 636 A.P.R. 201; 2002 SCC 11, refd to. [para. 19].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22; 174 D.L.R.(4th) 193, refd to. [para. 20].

Kiewit (Peter) Sons Co. et al. v. Municipal Assessment Agency Inc. et al. (2009), 285 Nfld. & P.E.I.R. 145; 879 A.P.R. 145; 2009 NLTD 13, refd to. [para. 27].

St. John's (City) v. Hotel Nfld 82 (Joint Venture) et al. (2003), 225 Nfld. & P.E.I.R. 323; 672 A.P.R. 323; 2003 NLSCTD 78, refd to. [para. 44].

Director of Assessment (N.S.) v. Schrader et al. (2010), 296 N.S.R.(2d) 263; 940 A.P.R. 263; 2010 NSCA 90, refd to. [para. 45].

Sun Life Assurance of Canada v. Montreal (City), [1950] S.C.R. 220; [1950] 2 D.L.R. 785, refd to. [para. 46].

Statutes Noticed:

Assessment Act, S.N.L. 2006, c. A-18, sect. 17 [para. 43]; sect. 39 [para. 5].

Counsel:

Ken Byrne, for the appellant;

Linda Bishop, for the respondent.

This appeal was heard on December 10, 2013, at St. John's, Newfoundland and Labrador, by Paquette, J., of the Newfoundland and Labrador Supreme Court, Trial Division (General), who delivered the following judgment and reasons for judgment, dated September 29, 2014.