Saskatoon (City) v. Wal-Mart Canada Corp. et al., (2015) 472 Sask.R. 45 (CA)

• Judge: Ottenbreit, J.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: July 22, 2015
• Jurisdiction: Saskatchewan
• Citations: (2015), 472 Sask.R. 45 (CA);2015 SKCA 125

Saskatoon v. Wal-Mart (2015), 472 Sask.R. 45 (CA);

    658 W.A.C. 45

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. DE.029

The City of Saskatoon (prospective appellant/respondent) v. Wal-Mart Canada Corp., Canadian Tire Corporation and Home Depot Holdings Inc. (prospective respondents/appellants)

(CACV2708; 2015 SKCA 125)

Indexed As: Saskatoon (City) v. Wal-Mart Canada Corp. et al.

Saskatchewan Court of Appeal

Ottenbreit, J.A.

November 25, 2015.

Summary:

The Saskatoon Board of Revision upheld the municipal tax assessments applied to five big box retail properties. The Saskatchewan Municipal Board, Assessment Appeals Committee set aside the decision. The City of Saskatoon applied for leave to appeal, pursuant to s. 33.1 of the Municipal Board Act. The 16 proposed grounds of appeal were grouped into four main headings: (1) the jurisdiction of the Committee in assessment appeals; (2) the onus of establishing error in the assessment; (3) the deference owed to the assessor's professional judgment and discretion in choosing the methodology for conducting assessments; and (4) the requirements of fair hearing.

The Saskatchewan Court of Appeal, per Ottenbreit, J.A., granted leave to appeal except on the ground of procedural fairness. The remaining grounds had merit and raised important questions.

Real Property Tax - Topic 7105

Assessment appeals (incl. complaints) - Provincially or municipally appointed tribunal or board - Jurisdiction - General - [See all 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 - The Saskatoon Board of Revision (BOR) upheld the municipal tax assessments applied to big box retail properties owned by the prospective respondents - The Saskatchewan Municipal Board, Assessment Appeals Committee, applied the market valuation standard and determined that equity was not achieved by the assessment - The City applied for leave to appeal - Two of the proposed grounds of appeal related to the onus of establishing error in the assessment - The City argued that the Committee erred by using the incorrect standard of proof applicable to the onus on the prospective respondents in an assessment appeal to demonstrate error, and that the Committee did not determine that the assessor's original model was in error - The Saskatchewan Court of Appeal, per Ottenbreit, J.A., held that the City's argument had sufficient merit - The Committee's use of the term "mistake" did not clearly indicate a material error of fact or law or standard appraisal principle - The Committee's statements that it wanted more information to confirm or refute the assessment called into question whether an error sufficient to overturn the decision of the assessor was present and whether an error on the part of the BOR was established - See paragraphs 29 to 31.

Real Property Tax - Topic 7161

Assessment appeals (incl. complaints) - Applications or appeals to the courts - Appeal on a question of law - The City of Saskatoon assessed the value of five big box retail properties - The assessor used the "rent model" to estimate market rent - At issue was the rent model's method of adjusting for size of tenant leasable area - The Board of Revision (BOR) upheld the assessments - The Saskatchewan Municipal Board, Assessment Appeals Committee, decided that the rent model did not meet the equity requirement - It set aside the assessed values and remitted the matter back to the assessor for a new assessment - The City applied for leave to appeal - A proposed ground was that the Committee erred by reading down the rule that deference was owed to the professional opinion of the assessor - The City also argued that the Committee erred by determining that the assessor had fettered his discretion by failing to consider alternative methods to adjust for size in the assessment model in choosing to use thresholds - The Saskatchewan Court of Appeal, per Ottenbreit, J.A., held that the grounds of appeal had sufficient merit - The Court recast the grounds as "Did the Committee err by disregarding the principle of deference to the discretion of the assessor" - See paragraphs 33 to 36.

Real Property Tax - Topic 7161

Assessment appeals (incl. complaints) - Applications or appeals to the courts - Appeal on a question of law - The City of Saskatoon applied pursuant to s. 33.1 of the Municipal Board Act for leave to appeal a decision of the Saskatchewan Municipal Board, Assessment Appeals Committee - The decision was in respect of appeals against municipal tax assessments applied to five big box retail properties - The Committee determined that it had the authority to require the assessor to provide additional information, and ordered the assessor to provide the prospective respondents with a written explanation of how the assessment was determined - A ground of appeal was that the Committee erred by failing to provide reasons explaining its request for new evidence - The City submitted that the issue of whether reasons were required for Committee requests for undertakings was a question of law of broad application that merited consideration - The Saskatchewan Court of Appeal, per Ottenbreit, J.A., stated that "the issue of whether to provide reasons for a request is a matter best left to the Committee which can in this respect determine its own process. It is destined to fail and leave will not be granted on this ground." - See paragraphs 37 to 39.

Real Property Tax - Topic 7167

Assessment appeals (incl. complaints) - Applications or appeals to the courts - Leave to appeal - The City of Saskatoon applied for leave to appeal the decision of the Saskatchewan Municipal Board, Assessment Appeals Committee, pursuant to s. 33.1 of the Municipal Board Act - A proposed ground of appeal was that the Committee erred in law by interpreting ss. 222 and 223(2) of the Cities Act as expanding its powers to hear and compel new evidence on its own motion and use its broad powers under the Municipal Board Act to seek and obtain information; specifically, new data and a new assessment model based on parameters the Committee set - The Saskatchewan Court of Appeal, per Ottenbreit, J.A., held that the ground had sufficient merit - "The Committee made it clear that in the absence of the requested information it would remit the matter back to the assessor to reformulate the assessment based on the parameters of the information requested. It may be that such remitting back is, in fact, an order compelling the assessor to provide the information under the guise of ordering a new assessment." - See paragraphs 23 and 24.

Real Property Tax - Topic 7167

Assessment appeals (incl. complaints) - Applications or appeals to the courts - Leave to appeal - The Saskatoon Board of Revision (BOR) upheld the municipal tax assessments applied to big box retail properties owned by the prospective respondents - The Saskatchewan Municipal Board, Assessment Appeals Committee, set aside the decision of the BOR, and remitted the matter back to the assessor for a new assessment - The City of Saskatoon applied for leave to appeal - A proposed ground of appeal was that the Committee erred in law by interpreting s. 20(2) of the Municipal Board Act as authorizing the Committee to request an assessor to create an entirely new assessment model for the Committee's review and consideration without having determined that the assessor's model was in error or that the BOR had erred - The Saskatchewan Court of Appeal, per Ottenbreit, J.A., held that the ground concerned the nature of the Committee's statutory authority and had sufficient merit - See paragraph 25.

Real Property Tax - Topic 7167

Assessment appeals (incl. complaints) - Applications or appeals to the courts - Leave to appeal - The Saskatoon Board of Revision (BOR) upheld the municipal tax assessments applied to big box retail properties owned by the prospective respondents - The Saskatchewan Municipal Board, Assessment Appeals Committee, set aside the BOR's decision - The City of Saskatoon applied for leave to appeal - A proposed ground was that the Committee committed a jurisdictional error when, on its own initiative, it considered and ruled on the matter of disclosure to the prospective respondents by the assessor of data determining the new assessment without the issue having been raised before the BOR or the Committee - The Saskatchewan Court of Appeal, per Ottenbreit, J.A., held that the ground had sufficient merit - There was a question whether there had been a fair opportunity for the parties to make submissions regarding the obligation of the City to provide data to the prospective respondents as part of the appeal - See paragraph 26.

Real Property Tax - Topic 7167

Assessment appeals (incl. complaints) - Applications or appeals to the courts - Leave to appeal - The Saskatoon Board of Revision (BOR) upheld the municipal tax assessments applied to big box retail properties owned by the prospective respondents - The Saskatchewan Municipal Board, Assessment Appeals Committee, applied the market valuation standard (MVS) and determined that equity was not achieved by the assessment - The City applied for leave to appeal - A proposed ground was that the Committee erred by ordering the assessor to disclose to the prospective respondents all data considered to develop the Committee-ordered power curve assessment model without consideration of the appropriate balancing test applicable to disclosure of confidential information, and that the Committee also erred in its interpretation or consideration of ss. 171(5), 171(6), 200 and 201 of the Cities Act - The Saskatchewan Court of Appeal, per Ottenbreit, J.A., held that the ground had sufficient merit - "There is a question whether these provisions of the Act explicitly empower the BOR or the Committee to compel disclosure from either party. The authority of the Committee to compel disclosure of confidential information of third parties in an MVS assessment appeal falls into this category." - See paragraphs 27 and 28.

Real Property Tax - Topic 7204

Assessment appeals - Practice - Issues on appeal - The City of Saskatoon applied for leave to appeal the decision of the Saskatchewan Municipal Board, Assessment Appeals Committee, pursuant to s. 33.1 of the Municipal Board Act - In its proposed notice of appeal, the City raised 16 grounds or subgrounds of appeal - Most grounds were a paragraph long - The 16 grounds and subgrounds sometimes contained argument and in some cases were repetitive - The Saskatchewan Court of Appeal, per Ottenbreit, J.A., as a preliminary matter, addressed the proper drafting of grounds of appeal - "It is important to remember that grounds of appeal are a framework upon which the arguments of the appellant can be safely built. Whenever possible, grounds should be focussed on setting forth the issue or issues upon which argument will be made and be as concise as the case of the appellant will permit. Stream of consciousness grounds are to be avoided. ... That said, I appreciate the effort made by the City in this application to group its many proposed grounds under main headings or issues" - See paragraphs 21 and 22.

Real Property Tax - Topic 7222

Assessment appeals (incl. complaints) - Grounds of appeal - Error of law - General - [See all Real Property Tax - Topic 7161 ].

Cases Noticed:

Rothmans, Benson & Hedges Inc. v. Saskatchewan (2002), 227 Sask.R. 121; 287 W.A.C. 121; 2002 SKCA 119, refd to. [para. 18].

Saskatoon (City) v. North Ridge Development Corp. (2015), 451 Sask.R. 265; 628 W.A.C. 265; 2015 SKCA 13, refd to. [para. 19].

Deer Lodge Hotels Ltd. v. Saskatoon (City) et al. (2015), 467 Sask.R. 134; 651 W.A.C. 134; 2015 SKCA 105, refd to. [para. 20].

Regina (City) v. Laing Property Corp., [1995] 3 W.W.R. 551; 128 Sask.R. 29; 85 W.A.C. 29 (C.A.), refd to. [para. 33].

Counsel:

Kim M.K. Bodnarchuk, for the prospective appellant;

Leonard D. Andrychuk, Q.C., for the prospective respondents.

This application was heard on July 22, 2015, before Ottenbreit, J.A., in Chambers, of the Saskatchewan Court of Appeal, who delivered the following written reasons for decision, dated November 25, 2015.