Nortel Networks Inc. v. Calgary (City) et al., 2008 ABCA 370

• Judge: Hunt, O'Brien and Slatter, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: October 08, 2008
• Citations: 2008 ABCA 370;(2008), 440 A.R. 325 (CA)

Nortel Networks Inc. v. Calgary (2008), 440 A.R. 325 (CA);

      438 W.A.C. 325

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. NO.008

Nortel Networks Inc. (respondent/applicant) v. The City of Calgary (appellant/respondent) and Municipal Government Board (respondent/respondent)

(0701-0105-AC; 2008 ABCA 370)

Indexed As: Nortel Networks Inc. v. Calgary (City) et al.

Alberta Court of Appeal

Hunt, O'Brien and Slatter, JJ.A.

November 4, 2008.

Summary:

Nortel Networks Inc. appealed its property tax assessment. The Assessment Review Board allowed Nortel's appeal, reducing the assessment. The city's appeal to the Municipal Government Board (MGB) was allowed. The assessment was increased. Nortel applied for judicial review.

The Alberta Court of Queen's Bench allowed the application, quashing the MGB's decision. The city appealed.

The Alberta Court of Appeal, Slatter, J.A., dissenting, dismissed the appeal.

Administrative Law - Topic 2266

Natural justice - The duty of fairness - What constitutes procedural fairness - Nortel Networks Inc. appealed its property tax assessment - The Assessment Review Board allowed Nortel's appeal, reducing the assessment - The city appealed to the Municipal Government Board (MGB) - The city refused Nortel's request for disclosure of the street addresses or other detailed information regarding the leases of 25 comparable properties it had relied on in determining the assessment - Nortel applied to the MGB for further disclosure, asserting that without addresses or details of the leases, it was unable to effectively challenge the city's evidence - The MGB dismissed the application, indicating that the additional details were not necessary and leaving the issue of disclosure to the panel that heard the appeal - On hearing the appeal, the MGB increased the assessment and denied the application for disclosure - Nortel's application for judicial review was allowed - The MGB's decision was quashed on the basis, inter alia, that Nortel had been denied procedural fairness - The Alberta Court of Appeal dismissed the city's appeal - The lack of disclosure effectively precluded Nortel either from tendering evidence through its own expert to explain why the alleged comparables were not in fact comparables or from demonstrating the same through cross-examination - While a board had considerable scope in determining what evidence was relevant for its purposes, it was not thereby entitled to deprive an opposite party of the means to effectively challenge such evidence - Nortel was deprived of procedural fairness through the MGB's failure to require disclosure of the information sought by Nortel to permit challenge of the evidence accepted and relied on by the MGB in allowing the city's appeal - See paragraphs 13 to 21.

Administrative Law - Topic 2493

Natural justice - Procedure - At hearing - Right to make submissions - [See Administrative Law - Topic 2266 ].

Administrative Law - Topic 2615

Natural justice - Evidence and proof - Failure to require production of known evidence - [See Administrative Law - Topic 2266 ].

Administrative Law - Topic 2617

Natural justice - Evidence and proof - Disclosure - [See Administrative Law - Topic 2266 ].

Real Property Tax - Topic 5502

Valuation - Evidence and proof - Production of relevant evidence - [See Administrative Law - Topic 2266 ].

Real Property Tax - Topic 7103

Assessment appeals - Provincially or municipally appointed tribunal or board - Duties and powers - [See Administrative Law - Topic 2266 ].

Real Property Tax - Topic 7208

Assessment appeals - Practice - Procedure - [See Administrative Law - Topic 2266 ].

Real Property Tax - Topic 7251

Assessment appeals - Evidence and proof - General - [See Administrative Law - Topic 2266 ].

Cases Noticed:

O'Malley v. Board of Education of Calgary Roman Catholic Separate School District No. 1 (2006), 398 A.R. 74; 2006 ABQB 126, refd to. [para. 11].

Innisfil (Township) v. Vespra (Township); South Simcoe Estates et al., [1981] 2 S.C.R. 145; 37 N.R. 43, 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].

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; 160 D.L.R.(4th) 193; 1998 CanLII 788, refd to. [para. 31].

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. 31].

Boardwalk Reit LLP v. Edmonton (City) et al. (2008), 437 A.R. 347; 433 W.A.C. 347; 91 Alta. L.R.(4th) 1; 47 M.P.L.R.(4th) 22; 2008 ABCA 220, affing. (2006), 411 A.R. 38; 64 Alta. L.R.(4th) 214; 2006 ABQB 683, refd to. [para. 31].

Assessor of Area No. 09-Vancouver v. Lord Realty Holdings Ltd. (1996), 82 B.C.A.C. 291; 133 W.A.C. 291 (C.A.), refd to. [para. 31].

Conseil de la magistrature (N.-B.) v. Moreau-Bérubé, [2002] 1 S.C.R. 249; 281 N.R. 201; 245 N.B.R.(2d) 201; 636 A.P.R. 201; 2002 SCC 11, refd to. [para. 32].

Canadian Union of Public Employees et al. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539; 304 N.R. 76; 173 O.A.C. 38; 2003 SCC 29, refd to. [para. 32].

McLeod et al. v. Alberta Securities Commission et al. (2006), 391 A.R. 121; 377 W.A.C. 121; 61 Alta. L.R.(4th) 201; 2006 ABCA 231, refd to. [para. 32].

Ha v. Canada (Minister of Citizenship and Immigration), [2004] 3 F.C.R. 195; 316 N.R. 299; 2004 FCA 49, refd to. [para. 32].

Robertson v. Edmonton Chief of Police et al. (2003), 339 A.R. 169; 312 W.A.C. 169; 28 Alta. L.R.(4th) 226; 2003 ABCA 279, refd to. [para. 35].

Harris v. Nova Scotia Barristers' Society et al. (2004), 228 N.S.R.(2d) 153; 723 A.P.R. 153; 2004 CarswellNS 496; 2004 NSCA 143, refd to. [para. 44].

Merck Frosst Canada Inc. et al. v. Canada (Minister of National Health and Welfare) et al. (1999), 249 N.R. 15; 3 C.P.R.(4th) 286 (F.C.A.), refd to. [para. 44].

Québec à Trois-Rivières et al., [1993] 1 S.C.R. 471; 148 N.R. 209; 53 Q.A.C. 171; 101 D.L.R.(4th) 494, refd to. [para. 45].

Counsel:

S.E.A. Trylinski and A.P. Frank, for the appellant;

G.J. Ludwig and J.B. Laycraft, Q.C., for the respondent, Nortel Networks Inc.;

M.J. D'Alquen, for the respondent, Municipal Government Board.

This appeal was heard on October 8, 2008, by Hunt, O'Brien and Slatter, JJ.A., of the Alberta Court of Appeal. On November 4, 2008, the court released its memorandum of judgment with the following opinions:

Hunt and O'Brien, JJ.A. - see paragraphs 1 to 21;

Slatter, J.A., dissenting - see paragraphs 22 to 55.