M.C. Lount & Associates Decisions

4. Broadway Properties Ltd. v. Assessor of Area #09 – Vancouver

IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20060817
Docket: L052836
Registry: Vancouver

And In The Matter Of The Assessment Act
R.S.B.C. 1996, c.20, s.65

And In The Matter Of An Appeal To The
Property Assessment Appeal Board
Of British Columbia

Between:

Broadway Properties Ltd.

Appellant

And

Assessor of Area #09 - Vancouver

Respondent

Before: The Honourable Mr. Justice Myers

Reasons for Judgment

INTRODUCTION

[1]                This is an appeal by way of Stated Case from a decision of the Property Assessment Appeal Board (the “Board”) pronounced October 17, 2005.  It is brought pursuant to s.65 of the Assessment Act, R.S.B.C. 1996, c.20 (the “Act”), which states:

65(1)    Subject to subsection (2) a person affected by a decision of the board on appeal … may require the board to refer the decision to the Supreme Court for appeal on a question of law alone in the form of a stated case.

[2]                Eight questions are stated.  They are all directed at whether a procedural ruling by the Board amounted to an error in law.  That ruling prevented the Appellant from raising an argument based on the equitable assessment of similar properties at the hearing because it had missed the deadline for filing submissions on the point in advance of the hearing.

BACKGROUND FACTS

[3]                The Case before the Board involved the 2003, 2004, and 2005 assessments of a commercial property located at 1177 West Broadway Street in Vancouver.  The issue before the Board was the determination of the actual value of the property for each of the assessment years.

[4]                The Appellant sought a reduction of the assessed value on the rolls for each year.  In seeking to confirm the assessment, the Assessor provided appraisal reports.  Those reports included some data associated with comparable properties.

[5]                Although the opportunity to submit evidence had passed under the Board’s appeal management process, the Appellant sought to add the issue of equity to its appeal on the basis that the Assessor, through its appraisal reports, had introduced evidence on this issue. 

[6]                The Assessor objected to the new issue on the basis of procedural fairness.  The Appeal Manager ruled that the panel would entertain the Appellant’s application at the outset of the hearing.  At the hearing, the Board ruled that the matter of equity would not be raised.  However, it provided the following interim ruling:

At the conclusion of the hearing I will accept written submissions on the matter of raising equity at a late date in the appeal process.  I will not hear oral argument relating to the substantive issue of equity during the scheduled hearing.  I will make findings on the issue of raising equity as a new issue during the appeal process, consider written submissions, and determine whether further submissions are required to deal with any outstanding substantive issue of equity.  (Para. 6).

[7]                In Reasons, dated October 17, 2005, the Board confirmed the values on the assessment roll for each of the years under appeal.  On the matter of equity, it held at paras. 52 – 56:

After reviewing the appeal management minutes and correspondence, which the parties submitted with respect to this issue, I find that the Appellant did raise the issue of equity quite late in the process.  Mr. Parkes does not deny that the issue was raised as a result of the production of the Assessor's appraisal reports and the Assessor's subsequent decision to request only conformation of the value on the rolls, rather than increasing them to the level indicated by the appraisals.  Indeed Mr. Parkes relies solely on the ASRs provided in those reports as evidence of his position on equity.

I also find that the late adoption of this position did not prejudice the Assessor.  At the time the issue of equity was first raised, the date of the hearing was not yet set, the adjudicator had not been chosen, and the issue was clearly identified by the Appellant.  The Assessor has the resources and ability to answer the issue of equity in a hearing setting, and had sufficient time to prepare to so do.  Prejudice, however, is not the sole test to be applied in determining if the requirements of procedural fairness have been met.

The Board has designed and implemented a process for the just and timely resolution of property assessment appeals.  The implementation of this process is within the Board's mandate and power, and I find it to have operated appropriately in this instance.

The Appellant too, has considerable resources, and an experienced representative in Mr. Parkes.  I find that there was nothing in the appraisal reports provided by the Assessor other than opinion, and facts that were available to the Appellant prior to commencing the appeals.  The assessment on the roll provided ample information and opportunity for the Appellant to raise the issue of equity in a timely fashion.  This was not done.

Procedurally, I find that the matter of equity was not raised in a timely fashion by the Appellant's representative, and may not be considered in this hearing.  This is consistent with Walmart v. Assessor of Area 26(2005 PAABBC 20042577).

THE STATED CASE

[8]                The eight stated questions are:

1.         Did the Property Assessment Appeal Board err in law in finding that the “matter of equity” was not raised in a timely fashion and could not be considered at the hearing, on the sole ground that to do so would “undermine the process?”

2.         Did the Property Assessment Appeal Board err in law in finding that to hear argument on the question of equity, arising only out of evidence admitted in the ordinary course, would “undermine the process” when there was no prospect of any real delay arising, and thereby to hear the argument would have no impact on the just and timely resolution of the appeal?

3.         Did the Property Assessment Appeal Board act on an unreasonable view of the facts and base its refusal to hear argument on equity on unfounded considerations?

4.         Did the Property Assessment Appeal Board err in law in its interpretation of the Property Assessment Appeal Board rules in concluding as it did that the rules authorized the Board to decline at a hearing to entertain argument drawing on or deriving from facts in evidence in the appeal?

5.         Did the Property Assessment Appeal Board err in law in finding that equity was not a live issue at the hearing at the appeal?

6.         Did the Property Assessment Appeal Board err in law by breaching the principles of natural justice in declining to entertain argument by the Appellant drawing on or deriving from facts put into evidence by the Respondent?

7.         Did the Property Assessment Appeal Board err in law by breaching the principles of natural justice in rejecting the Appellant’s argument on the equity question without hearing the argument on the question?

8.         Did the Property Assessment Appeal Board err in law and misdirect itself in finding:

Equity may be used as a yardstick to measure the effectiveness of the methodology of assessment …  The use of the direct comparison approach, the cost approach or the income approach to calculate value is to be completed …  Only after the result has been obtained, is it appropriate to look with equitable eyes upon the outcome.  Then, and only then, should the yardstick come out.

And thereby finding in effect that the requirement that assessment be at actual value should be a dominant consideration in the assessment, when in principle the taxpayer is entitled, as of right, to have both principles applied to the assessment of his property?

ISSUES

[9]                The following issues arise:

1.         The legislative scheme and rules of procedure that apply to the Board.

2.         The appropriate standard of review.

3.         Disposition of the Stated Questions.

ANALYSIS

(a)        The Legislative Scheme and Rules of Procedure that Apply to the Board

[10]            A property is assessed annually under the Act.  An initial valuation is made pursuant to s.19 of the Act.  An appeal of that assessment is made to the Property Assessment Review Panel, pursuant to s.38 of the Act.  Thereafter, appeals are made to the Property Assessment Appeal Board pursuant to s.50 of the Act.  The Property Assessment Appeal Board is empowered to vary an assessment under the following circumstances:

57(1)    In an appeal under this Part, the board

(a)        may reopen the whole question of the property's assessment to ensure accuracy and that assessments are at actual value applied in a consistent manner in the municipality or rural area.

[11]            Under s.43(3) of the Act, a number of provisions of the Administrative Tribunals Act, S.B.C. 2004, c.45, apply to the Board, including ss.11 and 14.  Those provisions entitle the Board to determine its own rules and procedures.  Section 11 of the Administrative Tribunals Act provides:

11(1)    Subject to this Act and the tribunal's enabling Act, the tribunal has the power to control its own processes and may make rules respecting practice and procedure to facilitate the just and timely resolution of the matters before it.

…

    (3)    In an application, the tribunal may waive or modify one or more of its rules in exceptional circumstances.

[12]            Section 14 of the Administrative Tribunals Act states:

In order to facilitate the just and timely resolution of an application the tribunal, if requested by a party or an intervenor, or on its own initiative, may make any order

(a)        for which a rule is made by the tribunal under section 11,

(b)        for which a rule is prescribed under section 60, or

(c)        in relation to any matter that the tribunal considers necessary for purposes of controlling its own proceedings.

[13]            In accord with the powers granted to it by the legislature, the Board has adopted a set of rules relating to practice and procedure.  Rule 1 sets out the purpose of the rules:

The purpose of these Rules is to assist in the just and efficient settlement or adjudication of appeals.

[14]            Rule 4 deals with the effect of non-compliance by a party with an order or direction from the Board.  It states:

If a party refuses or fails without reasonable excuse to comply with these Rules, to attend any proceeding under these Rules, or to comply with an order, direction or ruling of the board, the board may make any decision, order or direction it considers appropriate in the circumstances, including one or more of the following:

(a)        an order limiting the participation of a party in the proceeding or limiting the evidence which may be presented by a party in the proceeding;

(b)        where the non-complying party is the Appellant, an order dismissing the appeal or deeming the appeal to be withdrawn; and

(c)        an order that the non-complying party pay all or part of the costs of another party or all or part of the costs of the board resulting from the non-compliance.

[15]            With respect to the appeal process in particular, the rules provide for the following procedure:

13.       At any time after receiving a notice of appeal, on the written application of a party or on the board’s own initiative, the board may require the parties to

(a)        provide information on the issues and the property under appeal;

(b)        prepare and produce statements of issues, evidence and analysis,

(c)        attend an appeal management conference; and

…

14.(1)     A statement of issues, evidence and analysis must be in writing and must contain

(a)      details and particulars of all of the party’s issues in an appeal;

(b)      a summary of evidence that may be relied on in support of a party’s position on each issue;

…

    (2)      The board may make directions with respect to the information to be included in a statement.

    (3)      The Board may require that a statement be prepared and produced to the board and to the other party or parties within a specified time.

[16]            As part of the appeal process the Board may direct that appeal management conferences be held, and make any order appropriate for the efficient conduct of the appeal.  Rule 15 states:

(1)        The board may direct that an appeal management conference be held in person, by telephone conference or by some other method and be conducted by a member or the registrar.

(2)        The member or registrar presiding at an appeal management conference may make any order considered appropriate for the efficient conduct of the appeal and, without limitation, may

(a)        canvass the issues and any steps taken to reach agreement on the issues;

(b)        assist the parties to clarify the issues;

…

(d)        require a party to produce to the board or another party, or allow the board or another party access to, any documents or other information which may be material and relevant to an issue in the appeal;

…

(f)         require a party to prepare and produce to the board and the other parties notice of an expert witness and a written summary of the evidence to be given by an expert witness;

(g)        require a party to produce to the board and the other parties, or allow the board or another party access to, any documentary evidence that will be submitted as evidence at a hearing;

…

(k)        require the parties to prepare and produce written submissions;

(l)         require the parties to prepare and produce statements of issues, evidence and legal principles;

(m)      impose time limitations and terms and conditions on the production of documents, expert reports, agreed statements of facts, written submissions or any other process necessary for the fair and efficient management of the appeal;

(b)       The Appropriate Standard of Review

[17]            The parties are in agreement that this case involves a discretionary procedural ruling made by the Board and that therefore the standard of review to be applied is that of patent unreasonableness.  That flows from Elk Falls Pulp & Paper Limited v. Assessor of Area #06 - Courtenay, 2005 BCSC 1126 at paras. 52 – 53 and 56. 

[18]            A number of cases have discussed what constitutes a patently unreasonable error.  In Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., [1997] 1 S.C.R. 748, the Supreme Court of Canada held:

The difference between "unreasonable" and "patently unreasonable" lies in the immediacy or obviousness of the defect. If the defect is apparent on the face of the tribunal's reasons, then the tribunal's decision is patently unreasonable.  But if it takes some significant searching or testing to find the defect, then the decision is unreasonable but not patently unreasonable.  As Cory J. observed in Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941, at p. 963, "[i]n the Shorter Oxford English Dictionary 'patently', an adverb, is defined as 'openly, evidently, clearly'".  This is not to say, of course, that judges reviewing a decision on the standard of patent unreasonableness may not examine the record. If the decision under review is sufficiently difficult, then perhaps a great deal of reading and thinking will be required before the judge will be able to grasp the dimensions of the problem.  See National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324, at p.1370, per Gonthier J.; see also Toronto (City) Board of Education v. O.S.S.T.F., District 15, [1997] 1 S.C.R. 487, at para. 47, per Cory J.  But once the lines of the problem have come into focus, if the decision is patently unreasonable, then the unreasonableness will be evident.  (Para. 57).

[19]            In McIntyre v. Employ. & Assist. Appeal Tribunal, 2005 BCSC 1179, Russell J. canvassed a number of decisions that have described patently unreasonable decisions:

Patently unreasonable decisions have variously been described by the Supreme Court of Canada as ones that are “clearly irrational”, (Canada (A.G.) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941 at pp.963-947), “not in accordance with reason”, (Centre communautaire juridique de l’Estrie v. Sherbrooke (City), [1996] 3 S.C.R. 84 at paras. 9-12), “so flawed that no amount of curial deference can justify letting it stand”, (Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC. 20 at para. 21) and where “the result…almost border[s] on the absurd”, (Voice Construction Ltd. v. Construction & General Workers' Union, Local 92, [2004] 1 S.C.R. 609, 2004 SCC 23 at para. 18).  (Para. 18).

[20]            In Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, the Court discussed a patently unreasonable error in the context of a discretionary decision.  The Court held that a discretionary decision will be found to be patently unreasonable where the decision “was made arbitrarily or in bad faith, it cannot be supported on the evidence, or [the decision maker] failed to consider the appropriate factors” (para. 29).  The Court went on to note that in reviewing a decision, the Court should not “reweigh the factors or interfere merely because it would have come to a different conclusion” (para. 29).

(c)        Disposition of the Stated Questions

[21]            I turn, then, to consider the eight questions stated for the opinion of the Court.

1.     Did the property assessment appeal board err in law in finding that the “matter of equity” was not raised in a timely fashion and could not be considered at the hearing, on the sole ground that to do so would “undermine the process”?

[22]            Although the stated question was drafted by the Appellant, it argues that the question incorrectly assumes that the Board made a finding that allowing argument on the matter of equity would "undermine the process".  A similar argument is made with respect to Question 2.  The Appellant says that all the Board acknowledged was that the application was not raised in a timely fashion.

[23]            In limiting its consideration to the timing of when the issue of equity was raised, the Appellant says that the Board failed to consider relevant factors in exercising its discretion under s.57(1)(a).  It says the Board failed to correctly instruct itself on the legal test to be used in determining whether a new matter should be allowed to be raised.  The legal test that applies was discussed in Elk Falls, in which Holmes J. at para. 29 quoted from an earlier decision of the Board as to the criteria to be applied.  that list which I do not take to be exhaustive, included:

(a)        the need to uphold the efficacy of the Board’s Rules and the appeal management process in general;

(b)        the prejudice to the parties;

(c)        the degree to which prejudice can be compensated by other means;

(d)        the likelihood that the roll will be inaccurate and the extent of the inaccuracy;

(e)        the public interest in fair and equitable assessment”.

[24]            The Appellant submits that the Board found no prejudice to the Respondent and does not appear to have instructed itself on the accuracy and fairness of the roll.  With respect to the need to uphold the efficacy of the Board’s rules and the process generally, the Appellant says that the Board did not purport to dispose of the application on this basis.  Therefore, argues the Appellant, it can be deduced that the Board did not weigh relevant considerations in declining to hear argument on equity:  it did not consider whether allowing argument would uphold the efficacy of the Board’s rules and process, address the likelihood that the roll would be inaccurate and affect the public interest in fair and equitable assessments.

[25]            The Respondent says that, given the circumstances surrounding the case, it is clear on looking at the Board’s Reasons that the Board exercised its discretion judiciously.  It says the Board had the benefit of submissions made by both parties as to why the application should and should not be allowed and considered all of the relevant factors in reaching the decision it did.  It says the Board is not required to state every factor it considered in reaching its decision.

[26]            The Respondent also argues that where the Board has set out an appeal management procedure and has set out the implications for the failure to abide by that procedure, the Board is entitled to consider non-compliance with that procedure in exercising its discretion.  To this end, it points to the circumstances leading up to the appeal hearing in the present case, which it summarizes as follows:

The appeals before the Board were governed under an extensive appeal management process and were subject to various orders from the Board with regard to the production of issues statements and reports which had to be exchanged prior to the appeals being heard before the Board.

The Board had ordered on May 5, 2005 that the Appellant was to produce a summary statement demonstrating some support for its contention that the property was not equitably assessed.  This report was to be produced by July 15, 2005.

The Assessor was to respond to the Appellant’s “equity statement” by August 5, 2005 and the Board would then inform the parties whether it would exercise its discretion to allow the equity issue to be raised at the hearing no later than August 12, 2005.

The Appellant did not produce any statement relating to equity and in fact advised the Board that the Appellant did not have an equity argument.

After the reports were exchanged, the Appellant sought to come before the Board arguing that equity was now an issue simply because the Assessor had produced the report which indicated a market value that was higher than that on the roll.  The Assessor did not seek an increase in any of the values on the roll and was merely seeking a confirmation of the value on the assessment rolls.

[27]            I turn to address the Appellant's first argument, namely, the issue as to what, in fact, the Board considered in reaching its determination.  While I agree with the Appellant that it is not entirely clear from the Board's Reasons that it held the introduction of equity would "undermine the process", its Reasons do reveal, albeit in an indirect manner, that the Board considered the adverse effect that allowing argument at a late stage would have on its own process.  The Board held at para. 53 that “[p]rejudice … is not the sole test to be applied in determining if the requirements of procedural fairness have been met”.  It then went on to refer to the process designed and implemented by the Board for the just and timely resolution of property assessment appeals.  In concluding that the matter of equity could not be considered at the appeal hearing, it referenced Walmart v. Assessor of Area 26, 2005 PAABBC 20042577.  In that case, the Assessor had applied to add a new issue at an appeal.  The Board in Walmart declined to hear the issue because it was not brought up in the appeal management process, and concluded, among other things, that to allow a new line of inquiry would have been “prejudicial … to the processes of the Board” (para. 12). 

[28]            Thus, although the Board did not explicitly state that allowing argument on the issue of equity would, as the Assessor’s argument before the Board characterized it, “undermine the process”, it is apparent that the Board acknowledged the equivalent: that to do so would prejudice the processes of the Board.  In so finding, the Board turned its mind to the first of the criteria identified by Holmes J. in Elk Falls:  the need to uphold the efficacy of the Board’s rules and the appeal management process in general. 

[29]            The same can be said for a number of the other Elk Falls criteria.  In my opinion, it is apparent that the Board considered whether the assessment was fair and equitable.  The Board found that the Appellant had considerable resources and had an experienced representative and that there was nothing in the appraisal reports provided by the Assessor other than opinion and facts that were available to the Appellant prior to the Appellant commencing the appeals.  It held that the assessment on the roll provided ample information and opportunity for the Appellant to raise the issue of equity in a timely fashion and the Appellant did not do so.  Likewise, it is apparent, in my opinion, that the Board considered the likelihood that the roll would be inaccurate, as the assessment itself was the sole issue before the Board in the proceeding.

[30]            The Appellant’s argument assumes that the Board’s failure to explicitly reference the five criteria from Elk Falls is proof that those factors were not weighed by the Board.  However, the failure of the Board to refer to each factor in deciding not to allow the Appellant’s claim regarding equity is not, in and of itself, evidence that the Board did not consider what it was supposed to: Winkler v. British Columbia (Assessor of Area No. 9 – Vancouver), [1998] B.C.J. No. 3298 at para. 12 (QL).

[31]            Having addressed the issue of what the Board considered in reaching its decision, I now turn to consider whether its decision was an error in law. 

[32]            It is my opinion that the Board did not err in law in concluding that the issue of equity could not be considered at the hearing because to do so would undermine its own process (or in light of the foregoing, more accurately, prejudice the processes of the Board).  Having turned its mind to relevant considerations, the Board was entitled to exercise its discretion to foreclose an equity argument on this basis.  

[33]            The legislature has empowered the Board to determine its own practice and procedure, and to exercise discretion with respect to how it is to administer that procedure.  Under s.11 of the Administrative Tribunals Act, the Board can make rules respecting its practice and procedure.  Under s.14(a) of the Administrative Tribunals Act, the Board is empowered to make orders in accordance with those rules.  Under its authority to govern its process, the Board has established rules pertaining to the appeal process.  Rules 13 and 15 empower the Board to require parties to define issues in an appeal prior to the hearing and, in an appeal management conference, to make orders appropriate for the efficient conduct of the appeal.  Under Rule 4, the Board is entitled to make any decision, order or direction it considers appropriate where a party does not comply with the rules. 

[34]            The Board is entitled to rely on the procedure it has established to govern the appeal process, and to exercise its discretion with reference to that process.  To find otherwise, would both undermine the procedures of the Board and the legislature’s intention to permit it to govern its process. 

[35]            I therefore conclude that the answer to Question 1 is “no”.

2.         Did the property assessment appeal board err in law in finding that to hear argument on the question of equity, arising only out of evidence submitted in the ordinary course, would “undermine the process” when there was no prospect of any real delay arising, and thereby to hear the argument would have no impact on the just and timely resolution of the appeal?

[36]            The Appellant argues that the Board decided not to hear argument on the  issue of equity for the sole reason that to do so would delay the proceedings.  As no delay in the hearing date was requested, it argues in turn, there was no ground on which the Board could reach the conclusion it did.

[37]            The Assessor submits, in response, that adding equity as an issue would delay the resolution of the appeal, as the Board would require further submissions on the issue and would likely have allowed viva voce evidence on the issue.  It emphasizes that the Board considered whether it was unfair to deny the Appellant’s request, concluded that it was not unfair because the Appellant could have raised the issue of equity in the appeal management process, and therefore was entitled to make the finding it did.

[38]            As I have already found, the Board did find that to allow argument would prejudice its own procedures and was entitled to limit the appeal for this reason.

[39]            The Board had a basis for reaching this conclusion.  Its appeal procedure is geared towards resolving disputes in a just and timely manner.  That further submissions on the issue would have been required is sufficient for the Board to conclude that the Appellant's request would delay the resolution of the appeal.  This conclusion was not offset by considerations of what was fair or just in  the circumstances.  (See para. 29 above).

[40]            The answer to Question 2 is “no”.

3.         Did the property assessment appeal board act on an unreasonable view of the facts and base its refusal to hear argument on equity on unfounded considerations?

[41]            The Appellant submits that the Board was required to hear argument from the Appellant on issues arising on the evidence led before the Board and that the failure to do so was a breach of the principles of natural justice.  It acknowledges that the Board has discretion under s.57(1)(a), but argues that the Board relied upon irrelevant considerations in the exercise of that discretion in the present case.

[42]            The Respondent submits that the Board did not rely on the equity evidence introduced indirectly in the Assessor’s reports.  To this end, it relies on the following statement in the Board’s Reasons:

The Assessor has produced reports that indicate market values higher than those on the roll for his equity argument.  The Assessor has chosen to accept the values on the roll rather than the conclusions of the reports.  Mr. Parkes has based his equity argument solely on this "evidence" provided by the Assessor.  I find that the actions of the Assessor cannot be seen as evidence of inequity on the roll.  (Para. 57).  [Emphasis added].

[43]            It further submits that the Appellant had ample opportunity to raise the issue of equity prior to the hearing and that the Board had the benefit of submissions from the parties regarding the merits of raising the issue of equity at the hearing.

[44]            As discussed above in response to Question 1, the Board weighed relevant considerations in exercising its discretion under s.57(1).  Those considerations included whether it was fair to limit the scope of the Appellant’s appeal.  The Board noted that the use of the Assessor’s equity information was limited, given that “[t]he Assessor chose not to seek a higher assessed value based on the report” (para. 50), and held that the reference to equity in the appraisal reports was not evidence of inequity on the roll (para. 57).  The Board further concluded that “[t]he assessment on the roll provided ample information and opportunity for the Appellant to raise the issue of equity in a timely fashion” (para. 55).  In light of these observations, I cannot conclude that the Board exercised its discretion under s.57(1)(a) in a patently unreasonable manner.  

[45]            The answer to Question 3 is “no”.

4.         Did the property assessment appeal board err in law in its interpretation of the property assessment appeal board rules in concluding as it did that the rules authorized the board to decline at a hearing to entertain argument drawing on or deriving from facts in evidence in the appeal?

[46]            The Appellant’s submission on this issue is that the Board misapplied its own rules by preventing the Appellant from amending the scope of its appeal.  It says that because this Court would have allowed the parties to amend their pleadings, were they before it, the Board must also permit amendment.

[47]            The Assessor again points to the appeal management procedure, and argues that the Appellant’s failure to follow this procedure could be considered by the Board in the exercise of its discretion.  It submits that the Board did exactly what it was entitled to do under the rules and there is nothing patently unreasonable with that decision.

[48]            The legislature has empowered the Board to establish an appeals process.  That process need not mirror the procedure adopted by the Courts.  Rather, it can be tailored to address the realities of assessments and the appeals therefrom.  The Board is entitled to rely on the procedure it has established to govern the appeal process. 

[49]            The Board’s interpretation of its rules does not amount to an error in law.  The answer to Question 4 is therefore “no”.

[50]            Questions 5, 6 and 7 were addressed by the Appellant under Question 8.  I will therefore consider Question 8 next and then, if necessary, turn to the remaining three questions.

8.         Did the property assessment appeal board err in law and misdirect itself in finding:

Equity may be used as a yardstick to measure the effectiveness of the methodology of assessment … the use of the direct comparison approach, the cost approach or the income approach to calculate values is to be completed …. Only after the result has been obtained, is it appropriate to look with equitable eyes upon the outcome. Then, and only then, should the yardstick come out.

And thereby finding in effect that the requirement that assessment be at actual value should be a dominant consideration in the assessment, when in principle the taxpayer is entitled, as a right, to have both principles applied to the assessment of his property?

[51]            The Appellant says the board was obligated to consider the assessment in accordance with principles of equity. It says this flows from Bramalea Ltd. v. British Columbia (Assessor for Area 9 (Vancouver)) (1990), 52 B.C.L.R. (2d) 218 (C.A.) in which the Court of Appeal stated that “the second principle upon which the [assessment] system rests” is that there will be equity between the assessment of similar properties.  By refusing to allow equity to be considered, it says, the Board gave equity a back-seat, when it should have been given an equal role in the assessment.

[52]            The Respondent submits that the issue of equity was not before the Board because the Board held that there was no evidence of equity on the roll and because the Appellant decided not to produce evidence of inequity under the appeal management process.

[53]            The Appellant does not go so far as to say that the Board must consider the issue of equity where the parties before it do not raise it.  Nor do I think could it.  Therefore, equity is an argument that must be invoked by the parties, using the appropriate procedures.  In this case, the Board found that the proper procedure was not invoked, and therefore, that the argument could not be raised.  I have not found that it committed an error in law in so finding. 

[54]            As equity was not an issue before the Board, I do not see how any comments with respect to it could amount to an error in law in the present case.  The answer to Question 8 is “no”.

[55]            I turn to consider the remaining questions. 

5.         Did the property assessment appeal board err in law in finding that equity was not a live issue at the hearing at the appeal?

[56]            The Appellant offered no ground for its assertion that the Board committed an error in law in finding that equity was not a live issue at the hearing.  As discussed in answering the foregoing questions, the Board restricted the use of evidence of equity included in the Assessor’s appraisal reports.  I can see no reason why it is not entitled to govern the proceeding before it in this way.  The answer to this question is therefore “no”.

6.         Did the property assessment appeal board err in law by breaching the principles of natural justice in declining to entertain argument by the appellant drawing on or deriving from facts put into evidence by the respondent?

[57]            This question addresses arguments raised in Question 3.  For the reasons set out in para. 44 above, the answer to this question is “no”.

7.         Did the property assessment appeal board err in law by breaching the principles of natural justice in rejecting the appellant’s argument on the  equity question without hearing the argument on the question?

[58]            This question is also addressed in para. 44, and can be answered in the negative.

CONCLUSION

[59]            I therefore concluded that each of the stated questions should be answered in the negative.

COSTS

[60]            The Assessor will have its costs at Scale 3.

“E. Myers, J.”
The Honourable Mr. Justice E. Myers

September 12, 2006 – Revised Judgment

Corrigendum to the Reasons for Judgment issued advising that the date of hearing of this matter should be changed from “January 30, 2006” to read “June 30, 2006”.

Michael C. Lount, B.A. Sc., AACI, is president of M.C. Lount & Associates Ltd., a leading expert in the field of property tax assessments. Mr. Lount is a 30-year member of the Appraisal Institute of Canada and holds their senior AACI designation. He also holds a Bachelor of Applied Science degree in Civil Engineering from the University of British Columbia. He can be reached at 604-727-7902 or contact us here

Remember, we are an independent company and are not affiliated with the provincial government assessment office - the British Columbia Assessment Authority.