West-Man Culvert & Metal Co. v. Provincial Municipal Assessor (Man.), (1992) 81 Man.R.(2d) 112 (CA)

• Judge: Scott, C.J.M., O'Sullivan, Twaddle, Lyon and Helper, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: June 22, 1992
• Jurisdiction: Manitoba
• Citations: (1992), 81 Man.R.(2d) 112 (CA);1992 CanLII 2771 (MB CA);94 DLR (4th) 260;[1992] 5 WWR 56;81 Man R (2d) 112

West-Man Culvert v. Assessor (1992), 81 Man.R.(2d) 112 (CA);

    30 W.A.C. 112

MLB headnote and full text

West-Man Culvert & Metal Co. Ltd. (applicant/respondent/appellant) v. The Provincial Municipal Assessor (respondent/appellant/respondent)

(Suit No. AI 92-30-00657)

Indexed As: West-Man Culvert & Metal Co. v. Provincial Municipal Assessor (Man.)

Manitoba Court of Appeal

Scott, C.J.M., O'Sullivan, Twaddle, Lyon and Helper, JJ.A.

July 7, 1992.

Summary:

West-Man applied for leave to appeal a decision of the Municipal Board respecting an assessment of real property.

The Manitoba Court of Appeal, per Hu­band, J.A., in chambers, refused to grant leave to appeal. See paragraphs 29 to 39. West-Man appealed.

The Manitoba Court of Appeal dismissed the appeal.

Practice - Topic 8887

Appeals - Leave to appeal - Appeal from dismissal of application - The Manitoba Court of Appeal held that an appeal lies to the appellate court from a decision of a single judge in chambers refusing leave to appeal - The court noted that an appeal will not be allowed unless the chambers judge erred demon­strably on a matter of essential principle or erroneously declined jurisdic­tion - The court held that the mere fact that a point of law is raised does not entitle an applicant to leave, rather there are other con­siderations - Further, unless the legal principle involved can be applied in the case before it, without the court in­volving itself in factual issues, leave to appeal should be refused no mat­ter how important the point of law is.

Practice - Topic 8887

Appeals - Leave to appeal - Appeal from dismissal of application - The Municipal Board used a replacement cost approach in the valuation of a building - The taxpayer applied for leave to appeal argu­ing that the Board erred in law - A cham­bers judge of the Manitoba Court of Appeal refused leave to appeal - The taxpayer appealed - The Manitoba Court of Appeal dismissed the appeal, holding that the chambers judge was correct in refusing leave to appeal where the point raised was not one of law alone, which could result in the full court deciding the case differently.

Cases Noticed:

Nocita and Municipal Board of Manitoba et al., Re (1979), 95 D.L.R.(3d) 677 (Man. C.A.), folld. [paras. 1, 4, 12, 14].

Chevron Canada Resources Ltd. v. Gab­rielle (1990), 68 Man.R.(2d) 230 (C.A.), folld. [paras. 4, 15].

Lane v. Esdaile, [1891] A.C. 210 (H.L.), refd to. [para. 7].

Williams v. Grand Trunk Railway Co. (1905), 36 S.C.R. 321, refd to. [para. 8].

Smith & Hogan Ltd., Industrial Accep­tance Corp. Ltd. and Canadian Accep­tance Corp. Ltd. v. Canada Permanent Trust Co., [1931] S.C.R. 652, refd to. [para. 9].

Palmer, Re, [1955] O.W.N. 698 (C.A.), refd to. [para. 10].

Royal Bank of Canada v. Jarvie (No. 2) (1988), 64 Sask.R. 231 (C.A.), refd to. [para. 10].

Morgan v. Saskatchewan, [1991] 5 W.W.R. 323; 93 Sask.R. 188; 4 W.A.C. 188 (C.A.), refd to. [para. 10].

Western Securities Ltd. v. Foothills (No. 31) Municipal District et al., [1982] 1 W.W.R. 171; 35 A.R. 480 (C.A.), refd to. [paras. 10, 15].

McNiven and McNiven, Re (1989), 63 D.L.R.(4th) 444, refd to. [para. 11].

Waziuk v. Director of Social Services (No. 2) (1979), 3 Man.R.(2d) 81 (C.A.), refd to. [para. 19].

Statutes Noticed:

Court of Appeal Act, S.B.C. 1982, c. 7, sect. 9(7) [para. 11].

Municipal Assessment Act, S.M 1989-90, c. 24; C.C.S.M., c. M-226, sect. 14(1) [para. 35]; sect. 63 [para. 6].

Counsel:

A. Dobrowolski, for the appellant;

D.P. Flood, for the respondent.

This appeal was heard on June 22, 1992, before Scott, C.J.M., O'Sullivan, Twaddle, Lyon and Helper, JJ.A., of the Manitoba Court of Appeal. The decision of the court was delivered on July 7, 1992, including the following opinions:

O'Sullivan, J.A. - see paragraphs 1 and 2;

Twaddle, J.A. (Scott, C.J.M., Lyon and Helper, JJ.A., concurring) - see para­graphs 3 to 28.