M. C. Lount & Associates Ltd. - Property tax assessment appeals. Are you paying too much city tax?

Before: The Honourable Madam Justice Wedge

Reasons for Judgment

Counsel for the Appellant	S. B. Stewart M. A. Chaudhary
Counsel for the Respondents	J. H. Shevchuk
Date and Place of Trial/Hearing:	October 13, 2005
	Vancouver, B.C.

I. Introduction

[1] Wal-Mart Canada Inc. (“Wal-Mart”) appeals a decision of the Property Assessment Appeal Board (the “Board”) concerning the assessments of three stores located on properties in Prince George, Fort St. John and Dawson Creek, B.C. (collectively, the “Properties”). The Board seeks the opinion of the Court by way of a Stated Case pursuant to s. 65 of the Assessment Act, R.S.B.C. 1996, c. 20 (the “Act”).

[2] Wal-Mart objected to the assessed values of the Properties placed on the 2003 and 2004 Assessment Rolls, and, as a result, sought a review by the Board. The Board held a hearing in December of 2004, and rendered its decision in March of 2005.

[3] It was common ground between Wal-Mart and the Assessor that the Properties should be valued using the income approach. One element of the income approach methodology is the overall capitalization rate, which is applied to the net income from a property to derive the property’s value.

[4] Wal-Mart and the Assessor each tendered market evidence at the hearing, through expert appraisal witnesses, concerning the appropriate capitalization rate to be applied to the Properties. In reaching its decision, the Board relied on the market evidence tendered at the hearing and addressed by the expert witnesses of both parties. However, notwithstanding this, the Board decided to adopt a capitalization rate lower than the rates proposed by either expert.

[5] Applying the capitalization rate that it had adopted, the Board reached a decision as to the actual values of the Properties. It then addressed the issue of equity, and concluded that the original assessments of the Properties were equitable. As the actual values were lower than the equitable values, the Board concluded that Wal-Mart was entitled to assessments of the Properties based on the actual values.

II. Issues

[6] The narrow issues in this appeal are the following:

Issue 1: Did the Board deny Wal-Mart a fair hearing by applying a different capitalization rate than that proposed by either party in the absence of notice to the parties and an opportunity to be heard on that issue?

Issue 2: Did the Board err in not considering whether the use of that capitalization rate would result in an assessment of values that would bear a fair and just relationship to the values of similar properties?

[7] The answers to those questions are as follows:

Issue 1: No. The Board was not required to give notice that it might adopt a different capitalization rate so long as that rate was reasonably supported by the evidence adduced at the hearing. There was ample evidence on which the Board could conclude that a different rate ought to be applied to the valuation of the Properties.

Issue 2: No. The principle of equity does not require an examination of the capitalization rate in isolation. The Board’s first task was to determine the actual values of the Properties, which it did by applying a capitalization rate supported by the evidence. The Board’s next task was to determine whether those actual values were equitable, which it did by examining the assessments of comparable properties.

III. The Stated Case

[8] The case as stated by the Board pursuant to s. 65 of the Act is attached as Appendix 1 to these reasons.

IV. Discussion

1. Did the Board deny Wal-Mart a fair hearing?

Positions of the Parties

[9] Wal-Mart argued that the Board, as an administrative tribunal, is required to uphold the principles of natural justice, including the principle of audi alteram partem. The circumstances of this case, argued Wal-Mart, fall within the principles described by Sara Blake in Administrative Law in Canada, 3rd ed. (Markham, Ont.: Butterworths Canada Ltd., 2001) at p. 41:

Not only the evidence, but also the essential issues to be considered should be revealed. A party should not be left in the position of discovering, upon receipt of the tribunal’s decision, that it turned on a matter on which the party had not made representations because the party was not aware it was in issue.

[10] According to Wal-Mart, the Board was required to give notice that it was considering adopting a capitalization rate substantially lower than that suggested by either party and to provide an opportunity to address the matter in argument. Wal-Mart argues that the Board’s failure to do so resulted in the denial of a fair hearing.

[11] The Assessor does not dispute that the Board has a duty to observe procedural fairness, but submits that the concept is variable and its scope must be determined in the specific context of each case. One factor to consider is the statutory scheme under which the tribunal operates. According to the Assessor, the function of the Board under the Act is an inquisitorial one. The Board’s mandate is to determine the actual value of a property and to decide whether an assessment is equitable. While parties to an appeal invariably advance an opinion of value based upon evidence each party hopes will be persuasive, the Board is entitled to adopt a value different from that argued by the parties.

[12] The Assessor says natural justice requires only that the parties know and address the evidence the Board considered. The parties in this case were well aware of the evidence the Board ultimately used to adopt a capitalization rate lower than that proposed by the witnesses. As a result, the Board was not required to notify the parties that it was thinking of adopting a capitalization rate different from those proposed by the experts.

The Board’s Decision on Capitalization Rates

[13] In its decision, the Board accurately observed that there was little market evidence on which to determine the value of any of the Properties under appeal. Both expert appraisers called by the parties struggled to find appropriate market evidence upon which to base a conclusion of value. This lack of evidence required the Board to closely scrutinize not only the market evidence provided by the experts, but also the conclusions these experts drew from that market evidence.

[14] The amount of the net economic rents at the Properties and what capitalization rates should be applied were both in dispute before the Board. The Board preferred the evidence of Wal-Mart’s expert concerning estimated rents over that of the Assessor’s. In the result, the Board concluded that the net economic rent for the Prince George store was $8.02 per square foot (rather than $10.50 as argued by the Assessor), and the net economic rent for the other two stores was $8.50 per square foot (rather than $10.00 as argued by the Assessor).

[15] On the issue of capitalization rates, Wal-Mart’s expert provided information concerning transactions involving the purchase of similar retail facilities. One such transaction was the purchase of 12 Wal-Mart anchored shopping centres by Calloway REIT from First Pro in February of 2004. First Pro was Calloway REIT’s largest shareholder and was retained by Calloway REIT to manage the 12 centres, and thus the transaction could not be considered to be at “arm’s length”. The indicated capitalization rates for two similar British Columbia shopping centres involved in the transactions, Courtenay and Kamloops, were 9.26% and 9.21% (with portfolio premium).

[16] Wal-Mart’s expert was of the view that the necessary adjustments could not be made for the ongoing relationship between Calloway REIT and First Pro, and thus the Calloway REIT purchases were not reliable indicators of capitalization rates. Nor, in his view, were there any significant retail transactions in the Northern Interior of the province comparable to the Properties. Capitalization rates elsewhere in the province were variable, with lower rates generally found in the more populated areas of the Lower Mainland. Wal-Mart’s expert concluded that the capitalization rates for the Properties should be 10.75%. This rate was based on his opinion that rates in the Northern Interior should be higher due to their location.

[17] The Assessor’s expert analyzed three sales of shopping centres in the Northern Interior to determine a capitalization rate for the Prince George store. One was a shopping centre in Prince George called the Pine Centre, where the capitalization rate based on actual income was 9.4%. Due to the fact that the Pine Centre was a much older enclosed mall, it carried a greater risk than the Prince George Wal-Mart did. The Assessor’s expert concluded that the appropriate capitalization rate should be 10%. Considering the sales of an IGA Plaza in Fort St. John and a Save On Plaza in Williams Lake, the Assessor’s expert concluded that the appropriate capitalization rate for the Dawson Creek and Fort St. John Wal-Mart stores should be 10.5%.

[18] In its rebuttal evidence, the Assessor provided further information concerning the Calloway REIT purchase of the 12 shopping centres in February of 2004. The capitalization rates for similar B.C. shopping centres in Langley, Vernon and Cranbrook ranged from 8.55% to 8.75%.

[19] In its decision dated March 9, 2005, the Board noted the lack of comparable properties in the same areas as the Properties, and observed that the experts each analysed a different set of sales. The Board was not satisfied with the analysis provided by either expert, and commented at paras. 96-99:

The 11 comparable properties Mr. Glen [Wal-Mart’s expert] analysed are located in other areas of the province, and indicated capitalization rates ranging from 8.28% to 10.88%, with a median of 9.26%. He applied a higher capitalization rate (10.75%) to the Properties to account for their Northern Interior location. He did not provide sufficient evidence to support this differential or the rationale for selecting that rate.

Mr. MacLaggan [the Assessor’s expert] restricted his analysis to properties in the Northern Interior, the Pine Centre, the Williams Lake Save on Centre, the Boitanio Mall and the Fort St. John IGA Plaza. Mr. MacLaggan’s rationale for selecting a 10% capitalization rate for Prince George was confusing. He found the Pine Centre at 9.65% (9.40% on actual income) was the best indication and commented it is a greater risk. If the Pine Centre is a greater risk than the First Pro Power Centre, the indicated capitalization rate for Wal-Mart should be lower than 9.65%.

The Pine Centre is not directly comparable, but is an indication of a capitalization rate for a major retail property in Prince George. Mr. Glen said he would have included an analysis of the Pine Centre sale if he had been aware of the sale.

The Williams Lake Save On Centre, the Boitanio Mall and the Fort St. John IGA Plaza are not sufficiently similar to provide meaningful comparisons. We find Mr. MacLaggan ought to have included comparable properties from other communities to provide a more meaningful analysis.

[20] Using the evidence provided by both experts, the Board embarked on its own analysis. It examined the evidence concerning the properties in the province that were, in its view, most comparable to the Properties. In order to determine the effect of location, it compared the capitalization rate from the sale of the Pine Centre in Prince George to capitalization rates provided by Wal-Mart’s expert from sales of shopping centres in other locations in a similar price range. Many of those properties were part of the Calloway REIT transaction. As noted earlier, these properties were introduced into evidence by Wal-Mart’s expert but were rejected by him as being invalid comparables.

[21] In undertaking its analysis, the Board indicated that it was cognizant of the concerns expressed by Wal-Mart’s expert regarding the utilization of the Calloway REIT purchases from First Pro because of the non-arms length nature of the transaction and the ongoing relationship between the parties. However, the Board chose not accept these concerns expressed by Wal-Mart’s expert, and provided a series of reasons on which it based its view that the purchases could be utilized.

[22] Based on its analysis, the Board concluded that the appropriate capitalization rate should be 9.25%. The Board said the following in its report at para. 108:

Based on the sale of the Wal-Mart anchored centre in Kamloops, we find the capitalization rate for the Properties is 9.25%. The sale of the older and inferior Pine Centre in Prince George at 9.40% and the 9.26% median capitalization rate of the 11 sales in Mr. Glen’s analysis, also support a capitalization rate of 9.25%.

The Case Law

[23] The narrow issue before the Court is whether the Board is allowed to venture away from the opinions of the experts giving evidence at the hearing without the Board first telling the parties that it is considering doing so. The answer to this issue must be “yes”. The Act itself empowers the Board to determine a property value different from that which any of the participants to the process may argue is appropriate.

[24] In Riverside Heights Shopping Centre v. Surrey (District), [1974] B.C.J. No. 494 at para. 7 (S.C.) (QL), Toy J. (as he then was) , stated the following with respect to the obligation of the Board under the Act:

The Board, in my view, once it concluded that the assessed value of the improvements was in excess of the assessed value as properly determined under section 37 [now s. 19], was entitled, if not bound, to look at every bit of evidence tendered. The Board should then weigh all of the vive voce testimony, as well as the documentary evidence submitted, and then accept or reject in whole or in part the various witnesses’ testimony and/or opinions and accept in whole or in part the documentary evidence, and finally arrive at its own conclusion on what the “actual value of the improvements” was. It could amount to an error in law to blindly accept one or other of the two differing opinions in the manner submitted by counsel for the Assessor.

(Emphasis added)

[25] The question to be determined in any given case is whether the parties to a hearing were aware of the matters ultimately relied upon by the tribunal and whether the parties were permitted to make submissions with respect to them. The Assessor acknowledged that if, for example, the Board contemplated adopting a method of valuation that had not been presented by either party, it would be required to provide notice and an opportunity to make submissions on that issue.

[26] The principles of natural justice in the context of the Act were dealt with in Burnaby/New Westminster Assessor, Area No. 10 v. Carter (1996), 29 B.C.L.R. (3d) 205 (S.C.). At issue was the valuation of a water lot subject to a lease. The Assessor had proposed a value of $111,000, while the owner had proposed a value of $32,000. The Board concluded that the property ought to be given a nominal value of $1,000. The Assessor argued that the Board had deprived it of the opportunity to address the radically altered approach the Board utilized in giving the land a nominal value only. The Court, in deciding that the Board had denied the Assessor a fair hearing, stated at paras. 10-11:

It is, however, a fundamental principle of our law that parties should be given a fair chance to properly argue a case before a tribunal deciding disputed questions. It is, I suppose, part of the general duty of fairness that lies upon all tribunals to afford an opportunity to parties to make submissions on relevant points.

…[T]he case before the Assessment Appeal Board seems to have been fought out on grounds very different from the approach to value ultimately adopted by the Board. While…the Board is endowed with a broad discretion to decide on whatever basis it thinks fit questions of value it does not seem that there was afforded an opportunity to the appellant to discuss the validity of the approach of conclusion ultimately adopted. I am of the view that the appellant was not afforded before the Board a fair opportunity to address in a considered way the methodology or approach concerning valuation that was eventually adopted… As I might put it in colloquial terms, if the approach was not “on the table”, I do not know how the parties to the appeal could address the matter by reasoned argument.

(Emphasis added)

[27] Similarly, in British Columbia (Assessor of Area No. 10 – Burnaby/New Westminster) v. Lloyd, [2000] B.C.J. No. 1446, 2000 BCSC 59, the issue was whether the Board failed to provide a fair hearing when it adopted a value of property that was significantly outside the range presented by the parties. However, central to the decision is Court’s conclusion that the Board must have utilized a different approach than that presented at the hearing (the cost approach rather than the income approach) in order to arrive at a value so at odds with the values argued by the parties. For that reason, the Court concluded the Board had denied the parties a fair hearing. Mr. Justice Tysoe said this at paras. 15-16:

In my view, as in the Carter decision, the case before the Board was fought on grounds very different from the approach ultimately adopted by the Board. …

I do not think that it is an error of law for the Board to find a value outside the range submitted by the parties as long as the evidence reasonably supports the value. However, in view of the fact that the income approach valuation used by the Board produced a valuation lower than the actual land value of $415,000, which the Board expressly accepted, it is my view that the Board cannot properly rely on that valuation without giving the parties an opportunity to address the point.

[28] In the present case, by contrast, the Board employed the valuation method supported by both parties. The methodology and the evidence supporting it were clearly “on the table.” The Board examined all of the evidence provided by the parties’ experts but eventually disagreed with their conclusions. The Board devoted several pages of its decision to a discussion of the evidence concerning capitalization rates presented by the parties and its reasons for disagreeing with the conclusions drawn by the experts from that evidence.

[29] It cannot be said that Wal-Mart was unaware of the Board’s intention to deal with the evidence in the manner that it did. Nor can it be said that Wal-Mart was denied the opportunity to address the issues raised by the evidence. Both parties understood the significance of the evidence tendered with respect to capitalization rates, and both were careful to address this evidence throughout the course of the hearing.

[30] Ultimately, the Board concluded that the expert opinions were not supported by the evidence upon which those opinions were based. It was, in my view, certainly open to the Board to come to that conclusion. Further, the capitalization rate that was adopted by the Board was reasonably supported by the evidence tendered by the parties.

2. Should the Board have considered whether the capitalization rate was equitable?

[31] The second issue for determination by the Board was whether the assessments of the Properties were equitable when compared to similar properties in the respective assessment areas for the years in question. In reaching its decision, the Board focussed primarily on the rents for comparable stores in the assessment areas.

[32] After considering the evidence presented by the parties’ experts, the Board reached the following conclusions at paras. 136-37:

The Board does not accept Wal-Mart’s evidence that there is inequity between the Properties’ assessments and the assessments of similar properties outside of each of the municipalities in question. Section 57(1)(a) of the Assessment Act and case authorities are clear that the principle of equity and consistency of assessments is restricted to the municipality or the rural area. As stated by the Court in C&C Holdings Inc., et al. v. Assessor of Area 04 (BCSC) SC 463, entitlement to appeal an assessment based on “inter-jurisdictional inconsistency” is “…inconsistent with the scheme of the AssessmentAct which recognizes the individuality of municipal or rural area taxing jurisdictions….”

In summary, there was no evidence the original assessments of the properties were not inequitable. The Appellants are entitled to the lower of the actual value or the equitable value, and in this case, it is the actual value (see Bramalea Ltd. v. Assessor of Area #09 (1990) BCCA SC 277).

Positions of the Parties

[33] Wal-Mart argues that the Board committed an error in law by failing to consider whether a capitalization rate of 9.25% was inequitable in comparison to the capitalization rates applied to other comparable properties in the respective areas. Further, Wal-Mart submitted that natural justice required the Board to request submissions on the issue of equity as it relates specifically to the capitalization rate.

[34] In reply, the Assessor says it is incorrect to suggest the Board must isolate particular components of the valuation methodology and determine whether or not they are equitable. The capitalization rate is one component of the income approach method of valuation. According to the Assessor, it is the equity of the value resulting from the full application of the methodology that must be considered in relation to comparable properties, and not the equity of the capitalization rate in isolation. The Board determined equity by looking at the assessed values of comparable properties, which is all the Board was required to do.

The Case Law

[35] The leading case on the issue of equity in real property assessment in British Columbia is Bramalea Ltd. v. British Columbia (Assessor for Area 9 (Vancouver)) (1990), 52 B.C.L.R. (2d) 218 (C.A.), leave to appeal to S.C.C. refused, (1991), 55 B.C.L.R. (2d) xxxiii [Bramalea]. The Court of Appeal held that where there is a difference between actual value and equity in assessment, the taxpayer is entitled to the lower of the two.

[36] In Bramalea, the appellant taxpayer was the owner of the Hyatt Hotel. It appealed its assessment to the Board on the basis that the Assessor incorrectly calculated the net income of the Hyatt in determining the hotel’s value. The appellant understood from discussions with the Assessor that regardless of its success on the appeal, the same capitalization rate of 12% originally used by the Assessor to determine the hotel’s value would continue to be used for the valuation. A rate of 12% was the rate apparently applied to assess comparable properties in downtown Vancouver. However, on the appeal, the Board used a capitalization rate of 9.5% in assessing the Hyatt’s value. The new capitalization rate was significantly lower than that applied to comparable properties, and resulted in a far higher valuation figure than originally reached by the Assessor. The resulting assessment was also much higher than the assessments of comparable properties.

[37] Wal-Mart argued that Bramalea is authority for the proposition that the principle of equity must be applied to the utilization of the capitalization rate itself, rather than to the value resulting from the application of the capitalization rate. With respect, I am of the view that the decision cannot be read so narrowly.

[38] It is true the taxpayer in Bramalea contended that the Board adopted a discriminatory capitalization rate when compared to the rate applied by the Assessor to similar properties. However, the issue was not the inequity of the capitalization rate per se. The issue was whether the Board was required to consider whether its application of the lower capitalization rate resulted in a value that did not bear a fair and just relation to the assessed values of similar hotels in the area.

[39] The Assessor in Bramalea argued that the Board was not required to consider the question of equity at all. The Court of Appeal, faced with the Assessor’s position, characterized the issue in the following manner at p. 221:

[The] question is whether a taxpayer is entitled to an assessment at less than the level found by the board to constitute “actual value” if the result of increasing the original assessment to that which the board regards as actual value would be to impose on the taxpayer an assessment at a value higher than that which would be arrived at were the valuation done on the same basis as used in assessing other similar properties. The question is whether the principle that property is to be assessed at “actual value” ought to prevail in these circumstances over the requirement that assessed values of similar properties shall bear a fair and just relationship to each other.

[40] In Bramalea, as noted by the Court of Appeal, there was evidence before the Board which suggested that a 12% capitalization rate had been used by the Assessor in arriving at the originally assessed value of the Hyatt and other similar hotels in the area. There was nothing in the evidence to support the Board’s decision to dramatically reduce that rate. The disparity in the rate applied by the Board to the Hyatt as compared to similar hotels could not be explained by reason of any differences between the hotels. The issue on appeal from the Board’s decision was whether the application of the 9.5% capitalization rate resulted in an assessment of value that bore a fair and just relationship to the values of comparable hotels in the area. Ultimately, that question was remitted to the Board for reconsideration. The issue was not whether the capitalization rate adopted by the Board was inequitable per se.

[41] There may well be circumstances in which the capitalization rate adopted by the Board cannot be supported by the evidence. That was the case in Bramalea, where the application of a capitalization rate that was not supported by the evidence resulted in an assessment of value that did not bear a fair and just relation to the values of comparable properties in the assessment area. The Board’s error, as determined by the Court, was its failure to consider the equity issue in that context.

[42] In my view, Bramalea does not support the proposition that equity in an assessment invariably requires the use of the same methodology, or the same variables within any one method, in the valuation of similar properties. In each case, the Assessor and the Board must determine on the evidence before them whether there is a factual basis for a variance between similar properties in methodology or the variables used in a particular method of valuation. The concluding comments of Taylor J.A. in Bramalea indicated that the case was returned to the Board with direction to consider the matter of equity. It remained open to the Board, after proper consideration, to conclude that there was an evidentiary basis for variance between similar properties.

[43] In the present case, the Board first arrived at a capitalization rate by analyzing the evidence presented by the parties. As I have already concluded, that capitalization rate was supported by the evidence. As required by the income approach, the Board then applied its capitalization rate to the lease rates it had adopted on the basis of Wal-Mart’s submissions to calculate an actual value for each of the Properties. These lease rates were much lower than those proposed by the Assessor and significantly favoured Wal-Mart. Thereafter, in accordance with the principles of equity, the Board examined the values of comparable properties in the respective assessment areas. Its examination disclosed that the values of the Properties were equitable.

[44] As noted by the Assessor, if the use of a capitalization rate different from the rate applied to other properties can be said to support a claim of inequity, the next question must be whether the calculation of actual value using that different rate would result in a value higher than if the valuation had been calculated using the same rate as was used for similar properties. That was the underlying question in Bramalea.

[45] In several of the cases argued by Wal-Mart, decisions of the Board were set aside because it simply did not address the issue of equity. In the present case, equity was fully addressed. After reviewing the evidence, the Board found that Wal-Mart had been equitably assessed. The original capitalization rate and lease rates were reflective of rates within the range applied to similar properties. However, since the Board arrived at an actual value that was lower than the equitable assessments, the assessed values were reduced.

V. Summary of Conclusions

[46] I have concluded the following:

1. The Board did not deny Wal-Mart a fair hearing on the issue of the capitalization rate used; and

2. The Board was not required to consider whether the use of the capitalization rate it had adopted resulted in an inequitable assessment.

[47] The Assessor is entitled to his costs.

“C.A. Wedge, J.”

The Honourable Madam Justice C.A. Wedge

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

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