Court of Queen's Bench of Alberta - Reynolds Mirth Richards ...
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<strong>Court</strong> <strong>of</strong> Queen’s <strong>Bench</strong> <strong>of</strong> <strong>Alberta</strong><br />
Citation: Canadian Natural Resources Ltd. v. Wood Buffalo (Regional Municipality), 2012<br />
ABQB 177<br />
Date: 20120314<br />
Docket: 1113 00044,<br />
1113 00090<br />
Registry: Ft. McMurray<br />
Between:<br />
Canadian Natural Resources Limited<br />
- and -<br />
Applicant<br />
The Regional Municipality <strong>of</strong> Wood Buffalo, the Regional Municipality <strong>of</strong> Wood Buffalo<br />
Composite Assessment Review Board and the Minister <strong>of</strong> Justice, Attorney General for<br />
<strong>Alberta</strong><br />
Respondents<br />
_______________________________________________________<br />
Memorandum <strong>of</strong> Decision<br />
<strong>of</strong> the<br />
Honourable Madam Justice D.A. Sulyma<br />
_______________________________________________________<br />
I. INTRODUCTION<br />
[1] The Applicant, Canadian Natural Resources Limited (CNRL), seeks leave to appeal under<br />
s. 470 <strong>of</strong> the Municipal Government Act, RSA 2000, c M-26 [MGA], challenging two<br />
preliminary decisions <strong>of</strong> the Regional Municipality <strong>of</strong> Wood Buffalo Composite Assessment<br />
Review Board (“CARB”), being CARB 007/2010-P and CARB 027/2010-P.<br />
[2] Viewed more broadly, this action presents a general challenge to the new legislative<br />
scheme implemented under the 2009 amendments <strong>of</strong> the MGA. These amendments have shifted<br />
the responsibility for reviewing municipal tax assessments to locally-constituted assessment
Page: 2<br />
review boards and effectively abolished appeals, except on sufficiently important questions <strong>of</strong><br />
law or jurisdiction. CNRL argues that, given the extensive powers <strong>of</strong> the review boards, their<br />
constitution and administration does not provide sufficient protection from decisions that could<br />
be biased in favour <strong>of</strong> the municipalities. It also complains that the CARB misinterpreted<br />
legislation and incorrectly applied common law principles relating to pleadings and onus.<br />
II.<br />
FACTS<br />
[3] The present dispute arises from an amended 2010 assessment notice issued by the<br />
Regional Municipality <strong>of</strong> Wood Buffalo (the “Municipality”) for machinery and equipment at<br />
CNRL’s Horizon Oil Sands Project. On March 1, 2011, the Municipality rendered an assessment<br />
th<br />
notice to CNRL for approximately $2.4 billion. Four days later, on March 5 , and without any<br />
notice to or input from CNRL, the Municipality issued an amended assessment notice for<br />
approximately $3.2 billion.<br />
st<br />
[4] The March 1 notice was prepared following five years <strong>of</strong> reporting work and meetings<br />
between CNRL and the Municipality’s industrial assessor. According to CNRL, the<br />
Municipality’s assessor has acknowledged that the March 5 notice was not made in accordance<br />
with the assessment regulations and that the Municipality had ordered him to issue it. When<br />
CNRL requested details supporting the assessment pursuant to ss. 299 and 300 <strong>of</strong> the MGA, the<br />
Municipality explained that the increase in the assessment was based on “an estimate <strong>of</strong> a ratio <strong>of</strong><br />
capital expenditures to assessable cost.” In cross examination, the assessor acknowledged that<br />
this was a “rule <strong>of</strong> thumb” ratio taken from the Oil Sands Development Group Report<br />
(“OSDG”), and that the OSDG was not legally sanctioned under the regulations for preparing an<br />
assessment. The assessor has not used this “rule <strong>of</strong> thumb” to adjust the assessments <strong>of</strong> other<br />
industrial facilities.<br />
[5] CNRL challenged the legality <strong>of</strong> the amended March 5 assessment before the CARB. The<br />
parties agreed to deal with a number <strong>of</strong> preliminary issues first. The CARB held a total <strong>of</strong> four<br />
preliminary hearings. CNRL challenges only two decisions: CARB 007/2010-P and CARB<br />
027/2010-P.<br />
III.<br />
THE TEST FOR LEAVE TO APPEAL<br />
[6] On January 1, 2010, amendments to the Municipal Government Act came into force,<br />
changing the way property assessment complaints are handled in <strong>Alberta</strong>. The amendments<br />
abolished appeals to the Municipal Government Board for most property assessment matters. In<br />
their place, the new Act allows for an appeal to the <strong>Court</strong> <strong>of</strong> Queen’s <strong>Bench</strong> on questions <strong>of</strong> law<br />
and jurisdiction with respect to a decision <strong>of</strong> an Assessment Review Board. The appellant must<br />
seek leave to appeal before he/she will be allowed to proceed.<br />
[7] Subsection 470(5) <strong>of</strong> the amended MGA provides the test for obtaining leave to appeal,<br />
which can be distilled to three main requirements:
Page: 3<br />
(a)<br />
(b)<br />
(c)<br />
the appeal involves a question <strong>of</strong> law or jurisdiction;<br />
the issue is <strong>of</strong> sufficient importance to merit an appeal; and<br />
the appeal has a reasonable chance <strong>of</strong> success.<br />
IV.<br />
THE IMPUGNED DECISIONS<br />
1. CARB 007/2010-P<br />
[8] A hearing took place before the CARB in September 2010. The CARB heard a limited<br />
amount <strong>of</strong> evidence in relation to preliminary matters only. It did not hear any evidence on the<br />
merits <strong>of</strong> CNRL’s complaint. Nevertheless, CNRL sought a declaration that the amended<br />
assessment was illegal, asking for the original assessment to be reinstated. CNRL’s position was<br />
that since the amended assessment was illegal, there was no need for a full hearing on the merits<br />
and what it calls “a line-by-line review” <strong>of</strong> the assessment. In addition, CNRL argued that the<br />
Municipality had failed to reply to CNRL’s Request for Information in accordance with s. 299 <strong>of</strong><br />
the MGA and was thus precluded by s. 9(4) <strong>of</strong> the Matters Relating to Assessment and Taxation<br />
Regulation, Alta Reg 220/2004 [MRAT] from relying on a subsequent report that was not<br />
provided to CNRL as part <strong>of</strong> the s. 299 disclosure.<br />
[9] The CARB did not permit CNRL to argue the question <strong>of</strong> legality or to call an expert on<br />
that point. However, counsel for CNRL was allowed to cross-examine a witness on issues which<br />
the Municipality contends were unrelated to the s. 299 request.<br />
[10] The CARB concluded it did not have jurisdiction to provide declaratory relief, and that it<br />
only had jurisdiction to determine the “validity” <strong>of</strong> the amended assessment in the context <strong>of</strong> a<br />
full merit hearing. The CARB concluded that it could not reinstate a previous assessment if it<br />
finds the subsequent assessment to be invalid. The decision about whether to make a change —<br />
and the change itself — must rest on evidence. A complainant must successfully establish that<br />
the assessment has not been prepared correctly, otherwise, the CARB’s jurisdiction to make a<br />
change is not established. Upon finding that an assessment is incorrect, the CARB must turn its<br />
mind to what the correct assessment is. At that point, the complainant has the opportunity to<br />
demonstrate what the correct number should be.<br />
[11] The CARB also held that the Municipality had complied with CNRL’s s. 299 request.<br />
The Board ruled that s. 299 required the Municipality to provide only the information CNRL<br />
asked for. It also noted that CNRL did not advise the assessor that it considered his response<br />
insufficient, nor did it request a compliance review under s. 27.6 <strong>of</strong> the MRAT. The CARB held<br />
that since the Municipality had complied with s. 299, it could rely on the subsequent report in its<br />
argument before the CARB.
Page: 4<br />
[12] Finally, the CARB ruled that it had the power to direct the parties to jointly provide a list<br />
<strong>of</strong> issues they seek the CARB to resolve. CNRL does not contest this finding in its Application<br />
for leave.<br />
2. CARB 027/2010-P<br />
[13] At the December 2010 leading to decision 027/2010-P, CNRL argued that the amended<br />
assessment was a nullity because the amendments were made outside the statutorily mandated<br />
process. CNRL also raised the issue <strong>of</strong> equitable treatment and sought an order compelling<br />
production <strong>of</strong> information about the treatment <strong>of</strong> comparable facilities by the Municipality.<br />
CNRL’s chief concern was that it was the only taxpayer who was assessed based upon the OSDG<br />
report. The Municipality attempted to provide a new list <strong>of</strong> details to defend the amended<br />
assessment. These details were not provided to CNRL following its ss. 299/300 request. Section<br />
9(4) <strong>of</strong> the MRAT expressly provides that the CARB must not hear any evidence that was<br />
requested by a complainant under ss. 299 and 300 <strong>of</strong> the MGA, but was not provided.<br />
[14] The CARB declined to consider CNRL’s nullity argument. It held that it was merely an<br />
attempt to reintroduce the issue <strong>of</strong> legality <strong>of</strong> the amended assessment, a matter the CARB had<br />
already dealt with in decision CARB 007/2010-P. The CARB ruled that it did not have<br />
jurisdiction to rehear a matter it had already decided.<br />
[15] The CARB likewise declined to hear CNRL’s equity argument because CNRL did not<br />
raise equity as an issue in the original Complaint Form. Although CNRL’s Complaint Form<br />
expressly referred to the assessment as “inequitable” in the “Grounds <strong>of</strong> Appeal” section, the<br />
CARB held that CNRL failed to raise equity as a separate issue because “equity” was not<br />
included in the list <strong>of</strong> issues in Schedule “A”. The Board also noted that none <strong>of</strong> CNRL’s<br />
previous submissions raised equity as an issue. As a result, the CARB held it had no jurisdiction,<br />
under s. 9(1) <strong>of</strong> the MRAT, to hear or grant relief in relation to the equity issue. According to<br />
CNRL, this decision prohibited CNRL from calling evidence and questioning the Respondents<br />
about the equity <strong>of</strong> assessments.<br />
[16] Finally, on the issue <strong>of</strong> onus and burden <strong>of</strong> pro<strong>of</strong>, the CARB held that each party bears<br />
the onus to establish the value which it is seeking to have the CARB find as the correct assessed<br />
value. This is because neither party supports the assessed value given in the amended assessment.<br />
CNRL seeks to reduce it to the level <strong>of</strong> the original assessment; the Municipality seeks to<br />
increase it further.<br />
[17] The CARB also made a number <strong>of</strong> procedural decisions which are not subjects <strong>of</strong> this<br />
leave to appeal application.<br />
[18] Following the preliminary hearings, the CARB scheduled a 3 week hearing on the merits<br />
to commence on May 2, 2011. CNRL applied to this <strong>Court</strong> for a stay <strong>of</strong> proceedings. Martin J
Page: 5<br />
granted the application, finding that the case involved special circumstances warranting<br />
interlocutory intervention in the ongoing CARB process.<br />
IV.<br />
POSITIONS OF THE PARTIES<br />
1. Canadian Natural Resources Ltd.<br />
[19] CNRL seeks leave to appeal on the following questions:<br />
(a)<br />
Legality <strong>of</strong> the Amended Assessment<br />
(i)<br />
(ii)<br />
(iii)<br />
(iv)<br />
Does the CARB have jurisdiction to deal with illegality <strong>of</strong> an assessment<br />
notice and if so what is the effect <strong>of</strong> a ruling on illegality?<br />
Must an amended assessment be prepared in accordance with the<br />
legislative scheme?<br />
Is there a concurrent jurisdiction in the <strong>Court</strong> to deal with illegality on<br />
judicial review and can the <strong>Court</strong> issue a declaration with respect to the<br />
legality <strong>of</strong> an assessment?<br />
Is an Assessor to prepare assessments free from municipal influence?<br />
(b)<br />
Equity<br />
(i)<br />
(ii)<br />
(iii)<br />
Did the CARB err in its interpretation <strong>of</strong> the regulation and its conclusion,<br />
as to whether equity was raised in the Complaint Form filed with the<br />
CARB?<br />
Did the CARB err in its interpretation that CNRL is prohibited from<br />
calling evidence and questioning with respect to equity <strong>of</strong> assessments in<br />
the context <strong>of</strong> the appeal?<br />
Is the provincial Complaint Form used to file assessment complaints to be<br />
read in a liberal or restrictive manner?<br />
(c)<br />
Assessor’s Information Response<br />
(i)<br />
(ii)<br />
What is the intent <strong>of</strong> sections 299 and 300 <strong>of</strong> the Municipal Government<br />
Act?<br />
Has the CARB misinterpreted s. 299 and 300 and restricted the meaning <strong>of</strong><br />
section 9(4) <strong>of</strong> <strong>Alberta</strong> Regulation 310/2009?
Page: 6<br />
(d)<br />
Onus and Burden <strong>of</strong> Pro<strong>of</strong><br />
(i)<br />
(ii)<br />
Who carries the burden to prove an amendment to an assessment?<br />
Can a Municipality or an Assessor seek an increase in an assessment<br />
before a CARB under the new regulations and if so, who carries the<br />
burden?<br />
(e)<br />
Institutional Independence<br />
(i)<br />
(ii)<br />
Does the structure <strong>of</strong> the CARB panel satisfy the requirements for<br />
institutional independence in the adjudication <strong>of</strong> the assessment complaint<br />
before it?<br />
Does the CARB structure invite institutional bias, resulting in a loss <strong>of</strong><br />
jurisdiction?<br />
[20] The thrust <strong>of</strong> CNRL’s argument is that the CARB has committed a number <strong>of</strong> errors in its<br />
handling <strong>of</strong> its complaints. Specifically, CNRL submits that the CARB failed to recognize the<br />
need to prepare an assessment in accordance with the legislative scheme, wrongly precluded<br />
CNRL from calling evidence with respect to equity <strong>of</strong> assessments, and in general acted contrary<br />
to the principles <strong>of</strong> natural justice. CNRL also raises concerns about the fairness <strong>of</strong> the process<br />
and the CARB’s institutional independence.<br />
[21] CNRL does not address the test for leave to appeal on an issue-by-issue basis. Rather, it<br />
provides a generalized argument with respect to the s. 470(5) test, followed by what appears to be<br />
an argument on the merits.<br />
(a)<br />
Question <strong>of</strong> Law or Jurisdiction<br />
[22] CNRL submits that this appeal involves interpretation <strong>of</strong> a statute, specifically the MGA<br />
and the MRAT. Interpretation <strong>of</strong> a statute is a question <strong>of</strong> law. In addition, an allegation <strong>of</strong> failure<br />
to comply with procedural fairness likewise raises a question <strong>of</strong> law. Finally, it argues that where<br />
procedural fairness has been breached, a tribunal’s decision is void, as there has been a loss <strong>of</strong><br />
jurisdiction. Thus, procedural fairness engages a question <strong>of</strong> jurisdiction.<br />
(b)<br />
Sufficient Importance<br />
[23] CNRL submits that the test for sufficient importance is the importance <strong>of</strong> the issue for<br />
jurisprudential purposes. It argues that since the MGA amendments have completely changed the<br />
entire complaint system, the <strong>Court</strong>’s interpretation <strong>of</strong> the issues raised in this appeal will be <strong>of</strong><br />
fundamental significance to the whole complaint scheme. The interpretation <strong>of</strong> taxpayers’
Page: 7<br />
information rights and assurance <strong>of</strong> fair and impartial hearings are at stake. This concerns all<br />
stakeholders and not just CNRL.<br />
(c)<br />
Reasonable Chance <strong>of</strong> Success<br />
[24] CNRL submits that since it met the stringent test for a stay <strong>of</strong> proceedings before Martin<br />
J, reasonable chance <strong>of</strong> success has already been shown to exist.<br />
[25] In addition, CNRL argues that the relevant standard <strong>of</strong> review to be applied will inform<br />
its prospects for success, and submits that the CARB should not be afforded deference by this<br />
<strong>Court</strong>. First, it notes the CARB has no special expertise and its inexperience and struggle with<br />
the new complaint system are demonstrated by its inconsistent decisions. Simultaneously, the<br />
courts’ experience in matters <strong>of</strong> pure statutory interpretation is superior to that <strong>of</strong> a tribunal. The<br />
relevant statutory provisions carry no technical meaning beyond the “ken <strong>of</strong> a reviewing court”,<br />
and thus less deference is required.<br />
[26] Next, the CNRL submits that this decision involves a question <strong>of</strong> law that is <strong>of</strong> general<br />
importance or precedential value, and thus a more searching review is warranted. The questions<br />
in this appeal are more law intensive as opposed to fact intensive and will be relied upon by<br />
future participants.<br />
[27] In addition to the submissions above, CNRL’s brief also <strong>of</strong>fers an extensive argument on<br />
the merits <strong>of</strong> the matter. I am inclined to consider this argument as going to the “reasonable<br />
chance <strong>of</strong> success” branch <strong>of</strong> the test for leave. Accordingly, I will set it out below.<br />
Legality <strong>of</strong> the Amended Assessment<br />
[28] CNRL submits that there is a legislated process for the assessment <strong>of</strong> machinery and<br />
equipment, which was not followed by the Municipality in preparing the amended assessment.<br />
Section 293 <strong>of</strong> the MGA and s. 9 <strong>of</strong> the MRAT set out in mandatory language that the assessor<br />
must follow the procedures set out in the <strong>Alberta</strong> Machinery and Equipment Assessment<br />
Minister’s Guidelines and must do so in a fair and equitable manner. Specifically, the<br />
Municipality was required to calculate the “included costs” for the valuation <strong>of</strong> machinery and<br />
equipment in accordance with the 2005 Construction Cost Reporting Guide.<br />
[29] Indeed, CNRL argues, the Municipality has admitted before the CARB that the amended<br />
assessment did not follow the regulated process. Further CNRL submits, in cross examination,<br />
the industrial assessor Harry Schmidt admitted that the adjustment factor came from reference to<br />
an OSDG report.<br />
[30] CNRL submits that the amended assessment falls outside <strong>of</strong> the legally mandated process<br />
because it relied on the OSDG report. The amended assessment also fell outside the confines <strong>of</strong><br />
section 305(1) <strong>of</strong> MGA, which authorizes amendments to an existing assessment. Section 305(1)
Page: 8<br />
permits an amended assessment if there is an error, omission or misdescription. The industrial<br />
assessor has admitted that he was not aware <strong>of</strong> any error, omission, or misdescription in the<br />
initial assessment. Rather, the amendment was driven by a tax planning study. As a result, CNRL<br />
argues, the Municipality acted without jurisdiction.<br />
[31] CNRL relies on Teck-Bullmoose Coal Inc v British Columbia (Commissioner <strong>of</strong><br />
Mineral Tax), [2000] BCJ No 1957 (SC) for the proposition that a taxation authority does not<br />
enjoy an unfettered right to reassess at whim. While the taxing authority can reassess to correct a<br />
mistake, “it [cannot] move the goalposts in the middle <strong>of</strong> a game” (atpara38). CNRL contends<br />
that this is precisely what the CARB’s ruling permits the Municipality to do.<br />
[32] Finally, CNRL submits that the timing <strong>of</strong> the amendment and response from the industrial<br />
assessor suggest municipal interference in the assessment process, contrary to an assessor’s<br />
statutory and common law obligation to act fairly. In addition, CNRL was not given a fair notice<br />
<strong>of</strong> any apparent deficiencies in its cost reporting.<br />
Equity<br />
[33] CNRL contends that the CARB’s ruling on equity was “egregious” and suggests that it<br />
raises concerns about the fairness <strong>of</strong> the whole hearing. CNRL submits that the CARB panel has<br />
given inconsistent treatment to the issue <strong>of</strong> equity, ruling in CARB 027/2010-P that CNRL is not<br />
entitled to raise the issue <strong>of</strong> equity, while earlier noting in CARB 007/2010-P that the fairness<br />
and equity <strong>of</strong> the assessment must be taken into account in deciding on the legality <strong>of</strong> the<br />
assessment.<br />
[34] CNRL submits that this inconsistency renders the hearing process unfair and suggests<br />
bias in favour <strong>of</strong> the Municipality. CNRL goes on to submit that the errors made by the CARB,<br />
especially its refusal to admit evidence on the issue <strong>of</strong> equity taint the entire proceeding, and a<br />
new hearing is required.<br />
[35] CNRL further submits that the assessor did not apply the same “rule <strong>of</strong> thumb” used to<br />
increase CNRL’s assessment to adjust the assessments <strong>of</strong> other industrial facilities in the area.<br />
Hence, the amended assessment was contrary to the fundamental principles <strong>of</strong> uniformity and<br />
impartiality governing municipal taxes: Jonas v Gilbert (1881), 5 SCR 356. As an extension <strong>of</strong><br />
this argument, CNRL further submits that the assessment was made contrary to the assessor’s<br />
statutory and common law duties to be fair and equitable in preparing assessments.<br />
[36] In response to the CARB’s finding that the issue <strong>of</strong> equity had not been raised in the<br />
Complaint Form, CNRL submits that the use <strong>of</strong> the word “arbitrary” in its complaint, referring to<br />
the nature <strong>of</strong> the amendment, impliedly brought the concepts <strong>of</strong> fairness and equity into play.<br />
CNRL also contends that equity was raised numerous times in expert evidence. CNRL also<br />
points out that its attached schedule to the Complaint Form actually included a statement which<br />
explicitly referred to the amended assessment as “inequitable.” It asserts that the fact that equity
Page: 9<br />
was not mentioned under the “list <strong>of</strong> issues” on the Complaint Form is not fatal. On the contrary,<br />
the CARB’s narrow reading <strong>of</strong> the Complaint Form violated s. 26 <strong>of</strong> the Interpretation Act,<br />
R.S.A. 2000, c. I-8 by elevating form over substance. It also contradicted the trite principle that<br />
pleadings are to be read liberally. Indeed, if the Complaint Form were to be read as narrowly as<br />
the CARB panel contemplated, equity could never be a matter before the Board, as “equity” is<br />
not one <strong>of</strong> the potential complaint subjects listed on the Complaint Form.<br />
[37] Finally, CNRL submits that the CARB’s treatment <strong>of</strong> the equity issue has revealed<br />
inherent unfairness in the process and rulings <strong>of</strong> the Panel. Through its narrow reading <strong>of</strong> the<br />
Complaint Form, the Panel has effectively frozen CNRL’s ability to bring issues before the<br />
board. In the meantime, the Panel permitted the Assessor to re-formulate his justification for the<br />
amended assessment in subsequent filings. While the Panel employed an exceptionally narrow<br />
reading <strong>of</strong> s. 9(1) <strong>of</strong> the MRAT (which precludes raising any issues not identified on the<br />
Complaint Form), it did not hold the Assessor the same exacting standard with respect to the<br />
prohibition set out in s. 9(4) <strong>of</strong> the same Regulation. Section 9(4) prohibits the Municipality from<br />
bringing evidence that was not provided to CNRL pursuant to a s. 299 Information Request.<br />
Despite this prohibition, the CARB permitted the Municipality to adduce additional post facto<br />
justifications for issuing the amended assessment.<br />
Assessor’s Information Response<br />
[38] CNRL submits that the only information disclosed in response to its information request<br />
under ss. 299 and 300 <strong>of</strong> the MGA was an indication that the $0.8 Billion amendment was based<br />
upon tax planning factors. The assessor did not point to any discrepancies in, nor took any issue<br />
with, CNRL’s reporting <strong>of</strong> costs.<br />
[39] CNRL contends that the effect <strong>of</strong> the assessor’s response in light <strong>of</strong> s. 9(4) <strong>of</strong> the MRAT<br />
is tw<strong>of</strong>old. First, in the proceeding before the CARB, the assessor is prevented by s. 9(4) from<br />
relying on anything, other than the tax planning factors he identified in his response to CNRL’s<br />
s.299 information request. Second, the assessor has the burden <strong>of</strong> proving that the tax planning<br />
study was a correct and legal method <strong>of</strong> preparing an assessment.<br />
[40] Finally, CNRL argues that taxpayers’ information rights and the assessor’s response to<br />
information requests are important issues that warrant this <strong>Court</strong>’s response, especially given the<br />
novelty <strong>of</strong> the legislative scheme set in place in 2010.<br />
Onus and Burden <strong>of</strong> Pro<strong>of</strong><br />
[41] CNRL submits that the legislative scheme <strong>of</strong> the MGA and the legal principles governing<br />
burden <strong>of</strong> pro<strong>of</strong> both support the proposition that the assessor has the onus to establish the<br />
existence <strong>of</strong> an error in rendering an amended assessment. In general, whoever asserts a<br />
proposition bears the burden <strong>of</strong> proving it. The assessor’s s. 299 response constitutes exactly that
Page: 10<br />
— a proposition that a ratio <strong>of</strong> capital expenditures to assessable cost forms the proper basis for<br />
increasing CNRL’s assessment.<br />
[42] Moreover, in Moses v Agriculture Financial Services Corp Appeal Committee, [2005]<br />
AJ No 129 (QB), Ross J explicitly recognized that where a matter “lies particularly within the<br />
knowledge <strong>of</strong> one <strong>of</strong> the parties, that party must prove it, whether it be <strong>of</strong> affirmative or negative<br />
character.” CNRL contends that it would be an error to suggest that the burden <strong>of</strong> pro<strong>of</strong> should<br />
lie with CNRL to show that the amended assessment was wrong. Rather, the assessor has the<br />
obligation to show that the original March 1 assessment was in error. This would restore the<br />
presumption in favour <strong>of</strong> the original assessment.<br />
[43] Finally, CNRL submits that the CARB is limited to the issues raised in the pleadings<br />
before it. As a result, the Municipality cannot seek to further increase the assessment while it is<br />
searching for information to defend an arbitrary amendment. If the CARB finds the amended<br />
assessment null and void, there is no appeal from the original assessment, and the CARB does<br />
not have the jurisdiction to enter into a line by line review.<br />
Institutional Independence<br />
[44] CNRL submits that there is a heightened requirement for the perception <strong>of</strong> institutional<br />
independence in rural municipalities, where industrial properties <strong>of</strong>ten make up a large portion <strong>of</strong><br />
the municipal tax base.<br />
[45] The test for a reasonable apprehension <strong>of</strong> bias is whether a reasonable and right-minded<br />
person, viewing the matter realistically and practically, would conclude that it is likely that the<br />
tribunal would not decide fairly. In determining whether the members <strong>of</strong> the tribunal are<br />
appointed in a manner that satisfies the criteria <strong>of</strong> independence and impartiality a <strong>Court</strong> (i)<br />
should have regard to the historical context and (ii) may have regard to how the appointment<br />
process works in practice.<br />
[46] CNRL contends that while the CARB enjoys very broad powers, including the power to<br />
determine the admissibility <strong>of</strong> evidence, to order costs, and to change an existing assessment,<br />
security <strong>of</strong> tenure is entirely absent in the empowering legislation. It is left entirely up to the<br />
discretion <strong>of</strong> the appointing municipality, the same body that is liable to lose tax revenue.<br />
Likewise, the provisions <strong>of</strong> the MGA regarding administration <strong>of</strong> the CARB are very sparse and<br />
leave de facto control over the setting <strong>of</strong> hearings and the assignment <strong>of</strong> board members to<br />
hearings with the Municipality.<br />
[47] The administrative practice <strong>of</strong> the CARB does not change the perception <strong>of</strong> bias raised by<br />
the absence <strong>of</strong> security <strong>of</strong> tenure. In actual practice, s. 7 <strong>of</strong> Bylaw 10/003 sets out that the Clerk<br />
responsible for the administration <strong>of</strong> the CARB is appointed by the Chief Administrative Officer<br />
<strong>of</strong> the Municipality. The Clerk does not report in any way to the boards, only to the Chief<br />
Administrative Officer. The Bylaw is silent as to how the Boards are assigned.
Page: 11<br />
[48] In sum, CNRL submits that (i) there is complete absence <strong>of</strong> financial security for the<br />
members <strong>of</strong> the CARB, (ii) there is complete absence <strong>of</strong> security <strong>of</strong> tenure, and (iii) the CARB<br />
members are being asked to adjudicate the interests <strong>of</strong> the very people to whom they owe their<br />
appointments.<br />
2. Regional Municipality <strong>of</strong> Wood Buffalo<br />
[49] The thrust <strong>of</strong> the Municipality’s argument is that the questions on appeal are all questions<br />
<strong>of</strong> mixed fact and law, and therefore leave to appeal is unavailable. On that basis, the<br />
Municipality asks this <strong>Court</strong> to lift the stay <strong>of</strong> the CARB proceedings and to declare that the<br />
balance <strong>of</strong> the issues raised by CNRL are spent, and seeks costs <strong>of</strong> this application.<br />
[50] The Municipality submits that the remedy <strong>of</strong> declaration requested by CNRL is not<br />
available in this case. CNRL has provided no authority to support departure from the powers <strong>of</strong><br />
the <strong>Court</strong> described in s. 470.1 <strong>of</strong> the MGA, which do not include the power to declare an<br />
assessment null and void. Section 470.1 clearly states that the <strong>Court</strong> may only affirm or cancel<br />
the CARB’s decision. The MGA provides an adequate alternative to judicial review and thus a<br />
declaration should not be granted.<br />
[51] The Municipality disputes many <strong>of</strong> the facts cited by CNRL. In particular, the<br />
Municipality argues that the CARB treated CNRL fairly at the September 2010 hearing. The<br />
CARB refused to hear evidence from both sides until a merit-based hearing could be held, not<br />
just CNRL. Moreover, it permitted CNRL to cross-examine a witness on unrelated issues, despite<br />
the Municipality’s objections.<br />
[52] The Municipality also disagrees that the original assessment was prepared correctly. The<br />
Municipality intends to call evidence that CNRL’s original cost report contained errors and nonpermitted<br />
deductions when it has an opportunity to deliver an argument on the merits. In<br />
addition, the Municipality states that it had advised the CARB and CNRL that it was seeking to<br />
increase the included costs and explained to CNRL where its Cost Report contained errors.<br />
[53] Finally, the Municipality disputes that there was any interference from the municipal<br />
council in the preparation <strong>of</strong> the amended assessment. It submits that the decision to amend the<br />
assessment was made by the appointed assessor, Mr. Van Waas.<br />
[54] The Municipality submits that the questions on which CNRL is seeking leave were not<br />
those which the CARB was asked to decide. It points out that s. 470 <strong>of</strong> MGA provides for an<br />
appeal with respect to decisions made by the Board. In light <strong>of</strong> the CARB’s decisions, the<br />
Municipality suggests that the questions should be re-stated as follows:<br />
1. Did the Board err in its interpretation <strong>of</strong> s. 467(1)?
Page: 12<br />
2. Did the Board err when it decided that it did not have jurisdiction to make a<br />
declaration?<br />
3. Did the Board err when it decided that the word ‘change’ in s. 467(1) allowed it to<br />
increase the assessment?<br />
4. Did the Board err when it concluded that each party bears the onus to prove the<br />
included cost amount which each party believes is correct?<br />
5. Did the Board err when it ruled that equity was not raised as an issue on the<br />
Complaint Form, and therefore, CNRL was prohibited from advancing evidence<br />
and argument on the issue <strong>of</strong> equity pursuant to s. 9(1) <strong>of</strong> the Matters Relating to<br />
Assessment Complaints Regulation?<br />
6. Did the Board err when it found that Wood Buffalo complied with the s. 299<br />
request made by CNRL, and therefore, Wood Buffalo was not barred under s. 9(4)<br />
<strong>of</strong> the Matters Relating to Assessment Complaints Regulation from presenting<br />
Exhibit R-20 as evidence at the future hearing?<br />
7. Can leave be sought on the issue <strong>of</strong> whether there is a reasonable apprehension <strong>of</strong><br />
bias, either personal bias or institutional bias, when the Board was not asked to<br />
rule on this issue?<br />
[55] The Municipality notes that this list largely mirrors the list <strong>of</strong> issues that was compiled<br />
during the CARB hearing and assented to by CNRL.<br />
(a)<br />
Question <strong>of</strong> Law or Jurisdiction<br />
[56] The Respondent Municipality relies on a recent decision <strong>of</strong> this court in <strong>Alberta</strong><br />
(Municipal Affairs) v TransCanada Keystone Pipeline Limited Partnership, 2011 ABQB 460<br />
for the proposition that leave to appeal is available under the MGA only if a pure legal question<br />
can be extricated from a question <strong>of</strong> mixed law in fact. The Municipality submits that<br />
interpretation <strong>of</strong> the MGA and CNRL’s equity argument involve questions <strong>of</strong> mixed law and fact.<br />
[57] The Municipality submits that the first four issues listed above are related and are all<br />
issues <strong>of</strong> mixed law and fact. The Board’s decision on these four issues involved the application<br />
<strong>of</strong> s. 467(1) <strong>of</strong> the MGA to the specific factual circumstances. The Board heard both oral and<br />
written evidence. Its decision was made having regard to the factual context <strong>of</strong> this case.<br />
[58] The Municipality further submits that Issue #5 (whether equity was raised in the<br />
Complaint Form) involves application <strong>of</strong> statutory criteria to a set <strong>of</strong> facts and, as such, presents<br />
a “textbook example” <strong>of</strong> an issue <strong>of</strong> mixed law and fact. The question <strong>of</strong> law cannot be separated<br />
from the factual context <strong>of</strong> the actual Complaint Form in this case. In addition, in the context <strong>of</strong>
Page: 13<br />
property assessment, ‘equity’ has a specific meaning given by ss. 467(3) and 467(4) <strong>of</strong> the MGA.<br />
As a result, the Municipality contends that this <strong>Court</strong> should give deference to the Board.<br />
[59] Likewise, the Municipality characterizes Issue #6 as a question <strong>of</strong> mixed law and fact.<br />
During the hearing, the parties adduced written and oral evidence on this issue, and the CARB’s<br />
reasons show that the Board applied the provisions <strong>of</strong> the legislation to the evidence it had<br />
received.<br />
[60] Finally, on issue #7, the Municipality submits that CNRL has waived its right to seek<br />
leave to appeal on this issue. MGA provides that an appeal is only available from decisions made<br />
by the Board. CNRL has acknowledged that the CARB had not ruled on the issue <strong>of</strong> bias. In<br />
doing so, CNRL has recognized that bias was not part <strong>of</strong> the decision made by the Board. CNRL<br />
is therefore precluded from appealing this issue.<br />
(b)<br />
Sufficient Importance<br />
[61] The Municipality submits that it is unnecessary to consider this aspect <strong>of</strong> the test if the<br />
<strong>Court</strong> determines that an issue <strong>of</strong> mixed fact and law is involved. In the alternative, the<br />
Municipality contends that the issues in this appeal are specific to the facts <strong>of</strong> this case.<br />
Accordingly, the issues are neither jurisprudential nor <strong>of</strong> fundamental significance to the entire<br />
complaint scheme.<br />
(c)<br />
Reasonable Chance <strong>of</strong> Success<br />
[62] The Municipality submits that Martin J’s decision on a stay <strong>of</strong> proceedings does not assist<br />
CNRL, as there is no link between the test for a stay and the test for leave to appeal.<br />
[63] The Municipality, however, agrees with CNRL that reasonable chance <strong>of</strong> success depends<br />
on the applicable standard <strong>of</strong> review. It relies on an oral decision made on very similar facts by<br />
Poelman J. in Ruppert v Calgary Assessment Review Board and City <strong>of</strong> Calgary, November 18,<br />
2010 (unreported) for the proposition that the CARB’s decision should be reviewed on the<br />
standard <strong>of</strong> reasonableness. Deference should be afforded with respect to both the facts and the<br />
law.<br />
[64] The Municipality submits that a plain reading <strong>of</strong> the two CARB decisions suggests that:<br />
1. The Board correctly identified the governing legislative provisions;<br />
2. There is no evidence that the Board exceeded its jurisdiction;<br />
3. There is no evidence that the Board misapprehended the facts or considered<br />
extraneous facts; and
Page: 14<br />
4. There is no evidence that the Board misstated the issues before it.<br />
[65] The Municipality contends that there is no reasonable chance <strong>of</strong> success, as Poelman J., in<br />
a very recent decision involving very similar circumstances, held that second-guessing the<br />
CARB’s conclusions based on the evidence that was before the CARB in the first instance would<br />
go beyond a consideration <strong>of</strong> questions <strong>of</strong> law and jurisdiction.<br />
[66] Like CNRL, the Municipality also provides an expanded argument on the merits <strong>of</strong> the<br />
appeal. As with CNRL, I am inclined to treat these submissions as going to the reasonable chance<br />
<strong>of</strong> success branch <strong>of</strong> the test for leave. I will summarize these submissions below.<br />
Assessment Legislation<br />
[67] The Municipality submits that CNRL’s complaint falls under s. 460(5)(c) <strong>of</strong> the MGA<br />
dealing with complaints about assessments. Machinery and equipment are defined as “regulated<br />
property” by the MRAT, and are thus subject to special calculation rules that do not take into<br />
account the property’s market value. There are only two places in the legislated calculation where<br />
the assessor and the CARB can exercise their discretion. All other aspects <strong>of</strong> the formula are set<br />
by the Machinery and Equipment Assessment Minister’s Guidelines (the Guidelines) . In this last<br />
aspect, the Municipality concurs with CNRL.<br />
[68] The Municipality further explains that the calculation process involves three steps:<br />
1. Calculation <strong>of</strong> “Included Costs.” These are equal to the value <strong>of</strong> machinery and<br />
equipment determined in accordance with the Construction Cost Reporting Guide.<br />
2. Removal <strong>of</strong> s. 298 costs. The assessor removes the costs associated with items<br />
listed in s. 298 <strong>of</strong> the MGA. No assessment is required for these costs.<br />
3. Removal <strong>of</strong> “Excluded Costs.” The assessor removes certain costs pursuant to<br />
the categories <strong>of</strong> excluded costs listed in the Construction Cost Reporting Guide.<br />
[69] The Municipality submits that the “Included Costs” calculated in Step 1 form the input<br />
for the assessment formula. On that basis, it contends that the real issue before the CARB is the<br />
determination <strong>of</strong> the “Included Costs.” In essence, when the CARB considers a change in the<br />
assessment, it is asking itself whether or not the amount <strong>of</strong> “included costs” is correct. This then<br />
necessarily engages an examination <strong>of</strong> the total construction costs and the claims for excluded<br />
costs pursuant to the Construction Cost Reporting Guideline.<br />
Section 467(1)<br />
[70] This Argument is a response to CNRL’s submission that the CARB erred in refusing to<br />
declare the amended assessment a nullity. The Municipality submits that s. 467(1) <strong>of</strong> the MGA
Page: 15<br />
grants the CARB the power to (i) change the assessment, or (ii) decide that no change is required,<br />
nothing more. The CARB does not have the power to declare an assessment a nullity. The<br />
scheme <strong>of</strong> s. 467(1) is such that if the CARB finds that an assessment was not prepared in<br />
accordance with the legislation, the analysis does not stop there. Evidence must then be heard to<br />
determine the correct amount <strong>of</strong> the assessment. Accordingly, the CARB did not err in its<br />
interpretation <strong>of</strong> s. 467(1) when it held that it would not issue a declaration, but would be<br />
prepared to hear evidence on what the correct assessment value should be.<br />
[71] In addition, the Municipality submits that the CARB did not err in its interpretation <strong>of</strong> s.<br />
467(1) when it concluded that the word “change” allowed it to increase the amount <strong>of</strong><br />
assessment. The Board’s ultimate responsibility is to determine the correct assessment, and that<br />
may require increasing the assessment. The courts have consistently interpreted the word<br />
“change” to be a neutral word implying both an increase and decrease.<br />
Onus<br />
[72] The Municipality submits that the Board did not err when it concluded that each party<br />
bears the onus to prove its amount. The onus is on both CNRL and the Respondent, since they<br />
both dispute the amount shown on the Amended Assessment.<br />
[73] The Municipality submits that there is no principle that an assessor carries the burden to<br />
establish the existence <strong>of</strong> an error. It argues that the Sommers case relied upon by CNRL in this<br />
regard is distinguishable as it involved a prior order by the Local Authorities Board, which<br />
required the assessor to assess the land as if it had remained in the County <strong>of</strong> Parkland. The City<br />
attempted to tax the land at fair market value instead <strong>of</strong> as a farm unit in breach <strong>of</strong> this order.<br />
[74] Similarly, the Municipality argues that this case does not warrant a shift in the burden <strong>of</strong><br />
pro<strong>of</strong> similar to that recognized in Rendez-Vous Inn Ltd v St Paul (Town), [1999] AJ No 1428<br />
and Moses v Agriculture Financial Services Corp Appeal Committee, [2005] AJ No 129.<br />
Unlike in Rendez-Vous, the technical data in this case is not solely within the knowledge <strong>of</strong> the<br />
assessor. CNRL is fully aware and is in possession <strong>of</strong> the information required to determine its<br />
claim for excluded costs. In contrast to the situation in Moses, there is no matter that lies<br />
particularly within the knowledge <strong>of</strong> one <strong>of</strong> the parties. Neither party is seeking to have the Board<br />
confirm the Amended Assessment.<br />
Equity<br />
[75] The Municipality submits that the CARB was correct in finding that equity was a new<br />
issue. Further, the Municipality submits that CNRL has misconstrued the manner in which equity<br />
is achieved for “regulated property”, such as machinery and equipment.<br />
[76] Section 9(1) if the Matters Relating to Assessment Complaints Regulation, Alta Reg<br />
310/2009 clearly states that the CARB has no power to hear any mater in support <strong>of</strong> an issue that
Page: 16<br />
is not identified on the Complaint Form. As equity was never raised on the Complaint Form, the<br />
Board did not err by declining to hear the argument on equity.<br />
[77] The Municipality also submits that the CARB had acted properly in employing a narrow<br />
reading <strong>of</strong> the Complaint Form. This matter is not a motion to strike pleadings where pleadings<br />
are to be liberally interpreted. The CARB is not a <strong>Court</strong> with power to amend pleadings.<br />
Moreover, the CARB considered the entire form and concluded that equity had not been raised.<br />
The Municipality argues that this is a finding <strong>of</strong> fact that ought not to be disturbed.<br />
[78] Turning to the substance <strong>of</strong> the equity argument, the Respondent submits that the concept<br />
<strong>of</strong> equity for valuation <strong>of</strong> machinery and equipment does not require comparative valuations <strong>of</strong><br />
similar properties, as suggested by CNRL. Instead, equity should be determined in accordance<br />
with s. 467(4) <strong>of</strong> the MGA, which provides the CARB with the authority to review assessments<br />
<strong>of</strong> machinery and property, as long as they meet the requirements set out by the regulations.<br />
Under these circumstances, equity is achieved through a consistent and accurate application <strong>of</strong><br />
the legislation. The equity <strong>of</strong> the legislation itself is beyond the CARB’s review. The CARB is<br />
concerned solely with its application. Section 467(4) codifies this approach.<br />
[79] Finally, the Respondent submits that equity can still be achieved by review <strong>of</strong> CNRL’s<br />
Cost Report for compliance with the legislation. There is no inconsistency or unfairness in the<br />
Board’s reasons.<br />
Section 299<br />
[80] The Respondent Municipality submits that it has provided adequate response to CNRL’s<br />
s. 299 request. CNRL took no steps to request further information, nor did it request a<br />
compliance review under s. 27.6 <strong>of</strong> the MRAT, which provides a remedy where a taxpayer<br />
considers an information request response to be inadequate.<br />
[81] The CARB did not err in its application <strong>of</strong> s. 299 <strong>of</strong> the MGA. The CARB looked to the<br />
specific wording <strong>of</strong> CNRL’s request to determine the extent <strong>of</strong> the information requested by the<br />
company. It then looked at the Municipality’s response to determine whether it provided the<br />
information requested. Finally, the CARB considered whether CNRL’s request generated<br />
additional questions that would require a further response. The CARB found that the<br />
Municipality had complied with the s. 299 request, and as a result, s. 9(4) <strong>of</strong> the MRAT was not<br />
engaged. The Municipality contends that this was a proper application <strong>of</strong> s. 299.<br />
[82] While CNRL argues that the CARB admitted Exhibit R-20 contrary to s. 9(4) <strong>of</strong> the<br />
MRAT, the Municipality responds that Exhibit R-20 addressed inconsistencies in CNRL’s initial<br />
reporting and was submitted in response to CNRL’s witness reports, not in response to the s. 299<br />
request. . Moreover, the CARB recognized the need to give CNRL adequate time to respond to<br />
Exhibit R-20 and granted an extension for CNRL to provide its response.
Page: 17<br />
[83] Finally, with respect to s. 300, the Respondent submits that CNRL has never made a<br />
request for information pursuant to s. 300 <strong>of</strong> the MGA. As a result, this section is not relevant to<br />
this leave to appeal application.<br />
Reasonable Apprehension <strong>of</strong> Bias<br />
[84] The Respondent submits that issues <strong>of</strong> bias were not raised before the CARB and, as a<br />
result, cannot be subject <strong>of</strong> a leave to appeal. In the alternative, the Respondent submits that<br />
CNRL’s bias argument does not raise questions <strong>of</strong> law or jurisdiction and does not have a<br />
reasonable chance <strong>of</strong> success.<br />
[85] The Municipality submits that a question regarding a tribunal’s independence is not a<br />
question <strong>of</strong> law or jurisdiction. Rather, it requires this court to apply the legal test for<br />
independence to the factual context <strong>of</strong> the CARB. This is not a review <strong>of</strong> the situation where a<br />
legal test has been improperly applied; there was no application in the first place.<br />
[86] With respect to reasonable chance <strong>of</strong> success, the Municipality advances a brief argument<br />
on the merits.<br />
[87] As a preliminary matter, the Respondent addresses the distinction between institutional<br />
impartiality and independence. CNRL’s bias argument was limited to institutional independence.<br />
The Municipality contends that the financial impact <strong>of</strong> the CARB’s decisions on the Municipality<br />
is only relevant to the question <strong>of</strong> institutional impartiality, not institutional independence. The<br />
decision in Canadian Pacific Ltd v Matsqui Indian Band, [1995] 1 SCR 3, 122 DLR (4th) 129,<br />
relied upon extensively by CNRL, dealt with institutional impartiality only. As a result, the<br />
authority in Canadian Pacific does not assist CNRL.<br />
[88] The Municipality agrees with CNRL that the factors <strong>of</strong> institutional independence in<br />
Valente v the Queen, [1985] 2 SCR 673, 24 DLR (4th) 161 are relevant to determining the<br />
independence <strong>of</strong> a board. However, relying on Canadian Pacific at para 83, it contends that the<br />
importance <strong>of</strong> security <strong>of</strong> tenure, security <strong>of</strong> remuneration, and administrative control will vary<br />
from tribunal to tribunal, depending on<br />
(a)<br />
(b)<br />
(c)<br />
the nature <strong>of</strong> the tribunal,<br />
the interests at stake, and<br />
other indicia <strong>of</strong> independence such as oaths <strong>of</strong> <strong>of</strong>fice.<br />
[89] The CARB’s decisions do not affect any individual’s ability to engage in a chosen<br />
pr<strong>of</strong>ession, their security, or their freedom. This suggests a relaxed application <strong>of</strong> the Valente<br />
factors: Canadian Pacific at para 83.
Page: 18<br />
[90] On security <strong>of</strong> tenure, the Municipality points out that CNRL’s argument fails to take into<br />
account Bylaw 10/003, which explicitly prescribes a fixed 2-year term for the CARB’s members.<br />
The Bylaw does not allow for removal <strong>of</strong> any member by the Municipality.<br />
[91] On security <strong>of</strong> remuneration, the Municipality submits that it has complied with s.<br />
454.2(1) <strong>of</strong> the MGA by passing Bylaw 10/003, which affixes remuneration by reference to<br />
Order in Council 004/2008 and its succeeding legislation. As remuneration is effectively set by<br />
the Government <strong>of</strong> <strong>Alberta</strong>, it is free from municipal interference.<br />
[92] On administrative control, the Respondent admits the factors pointed out by CNRL but<br />
argues that they do not result in a lack <strong>of</strong> administrative control. The scheduling <strong>of</strong> the hearings<br />
by the CARB is a collaborative process and occurs with input from counsel for both sides. Even<br />
if sufficient administrative control over the appeal process is lacking, the Respondent submits<br />
that the first two Valente factors justify a finding <strong>of</strong> sufficient institutional independence.<br />
[93] Finally, the Municipality provides a response to a potential argument that it may still<br />
interfere with the CARB’s independence by amending the Bylaws. The Respondent submits,<br />
however, that it must be presumed that the Legislature was aware <strong>of</strong> this possibility when it gave<br />
the Municipality the authority to pass bylaws prescribing the term <strong>of</strong> <strong>of</strong>fice and remuneration for<br />
the CARB’s members. It would not be appropriate to impose additional requirements absent<br />
from the Legislature’s intent.<br />
3. Composite Assessment Review Board [Respondent]<br />
[94] The CARB does not take a position with respect to leave to appeal. However, it disputes<br />
the propriety <strong>of</strong> CNRL’s questions, the facts stated by CNRL, and CNRL’s allegations <strong>of</strong> bias. If<br />
this <strong>Court</strong> grants leave, the CARB requests direction on whether the balance <strong>of</strong> the questions<br />
found in CNRL’s Originating Application are spent.<br />
(a)<br />
Nature <strong>of</strong> the Questions<br />
[95] The CARB submits that CNRL’s questions look more like reference questions, rather<br />
than grounds on which its decision could be challenged. It submits that there is no jurisdiction for<br />
the <strong>Court</strong> <strong>of</strong> Queen’s <strong>Bench</strong> to act as a reference body under s. 470 <strong>of</strong> the MGA.<br />
[96] The CARB also draws the court’s attention to an important point concerning the nature <strong>of</strong><br />
a s. 470 appeal. The issue on appeal is whether the CARB erred in its decisions, not whether the<br />
assessor did so. It is the CARB’s role to hear complaints about the actions <strong>of</strong> the assessor.<br />
(b)<br />
Response to CNRL’s Statement <strong>of</strong> Facts<br />
[97] The CARB concurs with the Respondent Municipality that its jurisdiction was limited to<br />
making a change in an assessment, or refusing to make such a change.
Page: 19<br />
[98] With respect to CNRL’s submissions <strong>of</strong> fact on the s. 299 request, the CARB points out<br />
that CNRL had not made any further requests nor had requested a compliance review under s.<br />
27.6 <strong>of</strong> the MRAT. The CARB’s argument effectively mirrors that <strong>of</strong> the Respondent<br />
Municipality.<br />
[99] Finally, with respect to the admission <strong>of</strong> Exhibit R-20, the CARB states that it had<br />
granted CNRL an extension <strong>of</strong> several weeks to respond to this new evidence. Again, this mirrors<br />
the Municipality’s submissions.<br />
(c)<br />
The Test for Leave to Appeal<br />
[100] The CARB objects to what it calls CNRL “lumping” all <strong>of</strong> its questions together in<br />
addressing the test for leave. It submits that the <strong>Court</strong> should examine each question in turn to<br />
determine if leave should be granted on each one. If any <strong>of</strong> the questions involve issues <strong>of</strong> mixed<br />
law and fact, that question fails at that stage, and leave should be denied without further analysis.<br />
[101] The CARB further contends that its decisions involved questions <strong>of</strong> mixed law and fact<br />
and that the appropriate standard <strong>of</strong> review is reasonableness. It also points out that even within<br />
the category <strong>of</strong> “questions <strong>of</strong> law”, there are varying standards <strong>of</strong> review. Questions involving a<br />
tribunal interpreting its own statute will <strong>of</strong>ten be subject to deference. The legal precedent<br />
suggests that interpretation <strong>of</strong> the MGA attracts a standard <strong>of</strong> reasonableness.<br />
[102] The CARB also points out that both impugned decisions were preliminary in nature. It<br />
relies on the authority in Paramount Energy Operating Corp v <strong>Alberta</strong> (Energy and Utilities<br />
Board), 2008 ABCA 187.<br />
[103] Finally, the CARB concurs with the Respondent Municipality that it has no power under<br />
the MGA to grant a remedy <strong>of</strong> declaration. Like the Municipality, the CARB points out that<br />
CNRL has failed to provide any authority to support its argument.<br />
(d)<br />
Bias<br />
[104] The CARB reiterates that CNRL has not raised the issue <strong>of</strong> bias either before the CARB<br />
or in its Originating Application. It argues that the appropriate procedure was for CNRL to ask<br />
the adjudicator to recuse himself. CNRL did not follow this procedure. In addition, there is<br />
nothing in the materials filed with the <strong>Court</strong> to support CNRL’s allegations <strong>of</strong> personal bias.<br />
[105] The CARB submits that it is not institutionally biased because the MGA explicitly<br />
requires the Municipality to appoint two members <strong>of</strong> the Board. This was the Legislature’s<br />
decision, and it is permissible for the Legislature to decide to allow for an overlap <strong>of</strong> functions<br />
which, in normal judicial proceedings, would be kept separate (see Brosseau v <strong>Alberta</strong><br />
Securities Commission, [1989] 1 SCR 301). It is the Legislature that determines the degree <strong>of</strong>
Page: 20<br />
independence required <strong>of</strong> tribunal members. <strong>Court</strong>s will not lightly assume that legislators<br />
intended to enact procedures that run contrary to the principles <strong>of</strong> natural justice. To the extent<br />
that the overlap <strong>of</strong> functions is authorized, it will not generally be subject to the doctrine <strong>of</strong><br />
reasonable apprehension <strong>of</strong> bias. In addition, the degree <strong>of</strong> independence required <strong>of</strong> tribunal<br />
members may be ousted by express statutory language or necessary implication Ocean Port<br />
Hotel v British Columbia (General Manager, Liquor Control and Licensing Branch) 2001<br />
SCC 52, [2001] 2 S.C.R. 781.<br />
V. ANALYSIS<br />
[106] On review, this <strong>Court</strong> has an inherent power to re-frame the questions raised by the<br />
parties: Assessors <strong>of</strong> Areas #1 and #10 v University <strong>of</strong> Victoria, 2010 BCSC 133 at para 45;<br />
Hopewell Development (Leduc) Inc v <strong>Alberta</strong> (Municipal Government Board), 2009 ABCA<br />
391 at para 8; Northern Sunrise (County) v De Meyer, 2008 ABCA 191 at paras 5, 7. In my<br />
view, the numerous issues raised by the litigants essentially ask the following questions:<br />
1. Did the CARB err in finding that its authority was limited to changing the amount<br />
<strong>of</strong> assessment? This question addresses the issues raised by CNRL in its<br />
statement <strong>of</strong> issues - Legality <strong>of</strong> the Amended Assessment.<br />
2. Did the CARB err in finding that CNRL failed to raise equity as an issue in its<br />
Complaint Form and was therefore precluded from raising it in the hearing on the<br />
merits? This question addresses the issues raised by CNRL in its statement <strong>of</strong><br />
issues - Equity.<br />
3. Did the CARB err in finding that the Municipality had complied with CNRL’s s.<br />
299 request? This question addresses the issues raised by CNRL in its statement<br />
<strong>of</strong> issues – Assessor’s Information Response.<br />
4. Did the CARB err in finding that each party bears the onus to prove the included<br />
cost amount they believe is correct? This question addresses the issues raised by<br />
CNRL in its statement <strong>of</strong> issues – Onus.<br />
5. Is there a reasonable apprehension <strong>of</strong> bias raised by the CARB’s structure under<br />
the MGA and the Municipality’s by-laws made under the MGA? This question<br />
addresses the issues raised by CNRL in its statement <strong>of</strong> issues – Institutional<br />
Independence.<br />
[107] As discussed above, s. 470(5) <strong>of</strong> the MGA imposes three requirements for leave to be<br />
granted:<br />
1. The appeal must involve a question <strong>of</strong> law or jurisdiction;
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2. The issue must be <strong>of</strong> sufficient importance to merit an appeal; and<br />
3. The Appeal must have a reasonable chance <strong>of</strong> success.<br />
[108] I agree with the Respondent CARB that I should individually examine each question<br />
against these requirements to determine if leave should be granted on each one.<br />
1. Did the CARB err in finding that its authority was limited to changing the amount<br />
<strong>of</strong> assessment?<br />
(a)<br />
Question <strong>of</strong> Law or Jurisdiction<br />
[109] An appeal to this <strong>Court</strong> is available only on questions <strong>of</strong> pure law and jurisdiction. If the<br />
question is one <strong>of</strong> fact, or even mixed law or fact, the analysis stops there and an application for<br />
leave must fail. The rule is strict. Where a question <strong>of</strong> mixed fact and law is involved, leave to<br />
appeal may only be granted if a pure legal question can be extricated: TransCanada Keystone<br />
Pipeline Limited Partnership, at para 6; see also Pembina Institute for Appropriate<br />
Development v <strong>Alberta</strong> (Energy Resources Conservation Board), 2009 ABCA 322 at para 7.<br />
[110] Thus, characterization <strong>of</strong> the legal issue at hand is a critical step in the s. 470(5) inquiry.<br />
The starting point for the characterization analysis is Canada (Director <strong>of</strong> Investigation and<br />
Research) v Southam Inc, [1997] 1 SCR 748, which provides a concise summary <strong>of</strong> the three<br />
categories <strong>of</strong> legal questions at para 35:<br />
Briefly stated, questions <strong>of</strong> law are questions about what the correct legal test is;<br />
questions <strong>of</strong> fact are questions about what actually took place between the parties; and<br />
questions <strong>of</strong> mixed law and fact are questions about whether the facts satisfy the legal<br />
tests.<br />
[111] Nevertheless, the court in Southam recognized that the distinction between questions <strong>of</strong><br />
mixed fact and law and pure questions <strong>of</strong> law is not always clear: Southam, at para 35; see also<br />
Pushpanatham v Canada (Minister <strong>of</strong> Citizenship and Immigration), [1998] 1 SCR 982 at para<br />
37. Where a question <strong>of</strong> law is intricately intertwined with a multi-faceted fact pattern, such as in<br />
the case <strong>of</strong> negligence, the question is one <strong>of</strong> mixed fact and law: Southam, at para 35. On the<br />
other hand, where facts are clear and unambiguous and the only question is whether these facts<br />
satisfy a specific legal definition (e.g. whether a structure counts as a “house” within the meaning<br />
<strong>of</strong> the Housing Acts), that will be a question <strong>of</strong> law: William Wade, Administrative Law, 9th ed<br />
(Oxford: Oxford University Press, 2004) at 943.<br />
[112] Matters <strong>of</strong> mixed law and fact lie along a spectrum. Where an error can be attributed to<br />
the application <strong>of</strong> an incorrect standard, a failure to consider a required element <strong>of</strong> a legal test, or<br />
similar error in principle, such an error can be characterized as an error <strong>of</strong> law: Housen v<br />
Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235 at para 36. Where the legal principle is not readily
Page: 22<br />
extricable, then the matter is one <strong>of</strong> mixed law and fact. The Supreme <strong>Court</strong> summarized these<br />
principles as follows in Southam, at para 37:<br />
In short, as the level <strong>of</strong> generality <strong>of</strong> the challenged proposition approaches utter<br />
particularity, the matter approaches pure application, and hence draws nigh to being an<br />
unqualified question <strong>of</strong> mixed law and fact.<br />
[113] Precedential value is also highly relevant. In Pezim v British Columbia (Superintendent<br />
<strong>of</strong> Brokers), [1994] 2 SCR 557, the Supreme <strong>Court</strong> <strong>of</strong> Canada held that the issue <strong>of</strong> whether<br />
newly acquired information constituted a “material change” in the affairs <strong>of</strong> a company was a<br />
question <strong>of</strong> law. The <strong>Court</strong> in Southam summarized its decision in Pezim as follows at para 36:<br />
To some extent, then, the question resembled one <strong>of</strong> mixed law and fact. But the question<br />
was one <strong>of</strong> law, in part because the words in question were present in a statutory<br />
provision and questions <strong>of</strong> statutory interpretation are generally questions <strong>of</strong> law,<br />
but also because the point in controversy was one that might potentially arise in<br />
many cases in the future: the argument was about kinds <strong>of</strong> information and not merely<br />
about the particular information that was at issue in that case. The rule on which the<br />
British Columbia Securities Commission seemed to rely -- that newly acquired<br />
information about the value <strong>of</strong> assets can constitute a material change -- was a matter <strong>of</strong><br />
law, because it had the potential to apply widely to many cases.<br />
[Emphasis added.]<br />
[114] In this case, the issue at hand deals squarely with the interpretation <strong>of</strong> s. 467(1) <strong>of</strong> the<br />
MGA, which provides:<br />
467(1) An assessment review board may, with respect to any matter referred to in section<br />
460(5), make a change to an assessment roll or tax roll or decide that no change is<br />
required.<br />
[115] As stated in Southam, questions <strong>of</strong> statutory interpretation are generally questions <strong>of</strong> law.<br />
In this case, the only issue before CARB was whether it had the power under s. 467(1) <strong>of</strong> the<br />
MGA to do anything other than change the impugned assessment. This is a matter <strong>of</strong> pure<br />
statutory interpretation.<br />
[116] This question also holds extremely high precedential value. It impliedly includes the<br />
question <strong>of</strong> whether the CARB has the jurisdiction to make a declaration <strong>of</strong> illegality. The extent<br />
<strong>of</strong> the CARB’s remedial powers under s. 467(1) will be relevant to all complaints that come<br />
before it in the future. In line with the reasoning in Pezim, I conclude that it is appropriate to<br />
characterize this first question as a question <strong>of</strong> law.
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[117] Alternatively, I am prepared to find that Question 1 is a matter <strong>of</strong> jurisdiction. Although<br />
the recent Supreme <strong>Court</strong> <strong>of</strong> Canada decision in <strong>Alberta</strong> (Information and Privacy<br />
Commissioner) v <strong>Alberta</strong> Teachers’ Association, 2011 SCC 61 suggests that true questions <strong>of</strong><br />
jurisdiction are exceedingly rare, I find that this case presents precisely such a question. True<br />
jurisdiction questions arise where the tribunal must explicitly determine whether its statutory<br />
grant <strong>of</strong> power gives it the authority to decide a particular matter: Dunsmuir v New Brunswick,<br />
2008 SCC 9, [2008] 1 SCR 190 at para 59. This is exactly what the CARB has done in<br />
interpreting its powers under s. 467(1) <strong>of</strong> the MGA. It decided whether it had the power to grant<br />
declaratory relief. Thus, the extent <strong>of</strong> the CARB’s powers can also be characterized as a question<br />
<strong>of</strong> jurisdiction.<br />
[118] As a result, I find that Question 1 satisfies the first requirement for leave to appeal.<br />
(b)<br />
Sufficient Importance<br />
[119] An issue is <strong>of</strong> sufficient importance to merit an appeal if it is important for jurisprudential<br />
purposes: Omega2Corporation v Edmonton (City <strong>of</strong>), 2005 ABCA 449 at para 9. Sufficient<br />
importance must be determined on an objective scale and not on the basis <strong>of</strong> the subjective<br />
importance <strong>of</strong> the matter to CNRL: 845971 <strong>Alberta</strong> Ltd v Grande Prairie (Subdivision and<br />
Development Appeal Board), 2010 ABCA 135 at para 8; see also Globexx Properties Ltd v the<br />
City <strong>of</strong> Edmonton, 2011 ABQB 464.<br />
[120] I have already found in part (a) above that the extent <strong>of</strong> CARB’s powers under s. 467(1)<br />
raises a question <strong>of</strong> general importance to the new appeal scheme and that this question has high<br />
jurisprudential value. Accordingly, I find that Question 1satisfies the second requirement for<br />
leave to appeal.<br />
(c)<br />
Reasonable Chance <strong>of</strong> Success<br />
[121] It is important to keep in mind that merits <strong>of</strong> an appeal should not be considered on an<br />
application for leave: TransCanada Keystone Pipeline Limited Partnership.<br />
[122] The parties agree that selection <strong>of</strong> the standard <strong>of</strong> review will inform the reasonable<br />
chance <strong>of</strong> success test: 845971 <strong>Alberta</strong> Ltd, at para 8; Gendron v Calgary (City), 2009 ABCA<br />
367; TransCanada Keystone Pipeline Limited Partnership, at para 32; Ruppert, at 3, ln 29-31.<br />
Although the standard <strong>of</strong> review applicable to errors <strong>of</strong> law is normally correctness, the courts<br />
have long recognized that not all questions <strong>of</strong> law will attract the same standard <strong>of</strong> review:<br />
Toronto (City) v CUPE, Local 79, 2003 SCC 63 at para. 71. The more deferential standard <strong>of</strong><br />
reasonableness will apply where a decision maker is interpreting its own statute or has developed<br />
particular expertise in the area: Dunsmuir, at para 54. On the other hand, a question <strong>of</strong> law that<br />
is <strong>of</strong> central importance to the legal system as a whole and outside the specialized area <strong>of</strong><br />
expertise <strong>of</strong> the administrative decision maker will always attract a correctness standard:
Page: 24<br />
Dunsmuir, at paras 55, 60; see also Dr Q v College <strong>of</strong> Physicians and Surgeons <strong>of</strong> British<br />
Columbia, [2003] 1 SCR 226 at para 34.<br />
[123] In Dunsmuir, , the Supreme <strong>Court</strong> set out the modern approach to determining the<br />
appropriate standard <strong>of</strong> review. It involves two steps, which, put simply, are:<br />
1. The <strong>Court</strong> must examine existing jurisprudence to determine what standard <strong>of</strong><br />
review has been applied in similar circumstances.<br />
2. If Step 1 proves unfruitful, the <strong>Court</strong> must apply the factors in Dunsmuir, and<br />
Pushpanathan, to determine the appropriate standard <strong>of</strong> review.<br />
[124] Despite the recency <strong>of</strong> the MGA amendments, this <strong>Court</strong> has already had the opportunity<br />
to address the standard <strong>of</strong> review applicable to the CARB decisions under the new appeal<br />
scheme. In Ruppert, Poelman J held that the appropriate standard <strong>of</strong> review for questions <strong>of</strong> law<br />
was reasonableness, because they involved the tribunal interpreting its own statute and were not<br />
central to the legal system as a whole or outside the tribunal’s specialized area <strong>of</strong> expertise.<br />
Poelman J also held that the CARB is an expert tribunal for the purposes <strong>of</strong> determining<br />
appropriate standards <strong>of</strong> review, as it regularly hears and decides complaints about assessments<br />
and has thus acquired significant expertise in this area: Ruppert, at 6, ln 17-20. Justice Ross<br />
agreed with Poelman J in Associated Developers Ltd. v. Edmonton (City), 2011 ABQB 592 at<br />
paras 53-55.<br />
[125] Even if I did not have the benefit <strong>of</strong> the decisions in Ruppert and Associated Developers,<br />
I would still hold that reasonableness is the appropriate standard <strong>of</strong> review, much on the same<br />
grounds as Poelman J in Ruppert. The question <strong>of</strong> law in this case involves interpretation <strong>of</strong> the<br />
CARB’s own statute. The question is not central to the legal system as a whole, as it affects only<br />
the interests <strong>of</strong> taxpayers seeking assessment review before various CARBs. The latest Supreme<br />
<strong>Court</strong> jurisprudence takes this reasoning even further. The Supreme <strong>Court</strong> <strong>of</strong> Canada very<br />
recently held that the interpretation by the tribunal <strong>of</strong> its own statute or statutes closely<br />
connected to its function should be presumed to be a question <strong>of</strong> statutory interpretation subject<br />
to deference on judicial review: <strong>Alberta</strong> Teachers’ Association, at para 34. In light <strong>of</strong> this new<br />
jurisprudence, I have no doubt that the appropriate standard <strong>of</strong> review is deference.<br />
[126] The decision in <strong>Alberta</strong> Teachers’ Association, also leaves little doubt as to the standard<br />
<strong>of</strong> review applicable to the question <strong>of</strong> jurisdiction. The <strong>Court</strong> held at para 34:<br />
When considering a decision <strong>of</strong> an administrative tribunal interpreting or applying its<br />
home statute, it should be presumed that the appropriate standard <strong>of</strong> review is<br />
reasonableness.<br />
[Emphasis added.]
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[127] Without engaging in a debate as to whether true questions <strong>of</strong> jurisdiction still exist, it is<br />
clear on the facts <strong>of</strong> this case that the CARB is interpreting and applying its home statute. As a<br />
result, regardless <strong>of</strong> whether this question is characterized as a question <strong>of</strong> law or jurisdiction, it<br />
is appropriate to presume that the appropriate standard <strong>of</strong> review is reasonableness.<br />
[128] The Supreme <strong>Court</strong> <strong>of</strong> Canada defines “reasonableness” in Dunsmuir, at para 47 as<br />
follows :<br />
[R]easonableness is concerned mostly with the existence <strong>of</strong> justification, transparency<br />
and intelligibility within the decision making process. But it is also concerned with<br />
whether the decision falls within a range <strong>of</strong> possible, acceptable outcomes which are<br />
defensible in respect <strong>of</strong> the facts and the law.<br />
[Emphasis added.]<br />
[129] Having established reasonableness as the appropriate standard <strong>of</strong> review, I have no<br />
difficulty finding that CNRL has failed to show a reasonable chance <strong>of</strong> success on Question 1.<br />
Section 467(1) states in plain language that the CARB has the power to “make a change” or<br />
“decide that no change is required” with respect to an existing assessment. It does not provide for<br />
any additional remedies. The CARB’s interpretation <strong>of</strong> s. 467(1) confining available remedies to<br />
changing an assessment or leaving it as-is was reasonable, and comes within a range <strong>of</strong> possible,<br />
acceptable, defensible outcomes.<br />
[130] CNRL also seeks a decision on whether this <strong>Court</strong> has concurrent jurisdiction to deal with<br />
illegality on judicial review. In Dunsmuir at para 31, the Supreme <strong>Court</strong> held that superior courts<br />
always maintain a power to review administrative decisions by virtue <strong>of</strong> their inherent<br />
jurisdiction:<br />
The legislative branch <strong>of</strong> government cannot remove the judiciary’s power to review<br />
actions and decisions <strong>of</strong> administrative bodies for compliance with the constitutional<br />
capacities <strong>of</strong> the government. Even a privative clause, which provides a strong indication<br />
<strong>of</strong> legislative intent, cannot be determinative in this respect .<br />
[131] In my opinion, this <strong>Court</strong>’s inherent jurisdiction is sufficiently broad to allow for<br />
simultaneous judicial review, notwithstanding the appeal regime provided by the MGA.<br />
However, I am bound by the appellate authority KCP Innovative Services Inc v <strong>Alberta</strong><br />
(Securities Commission), 2009 ABCA 102 at para 9, where the <strong>Court</strong> held that where there is “a<br />
clear right <strong>of</strong> appeal which would provide an adequate remedy, only in exceptional circumstances<br />
should judicial review be granted.” I need not engage in a detailed analysis <strong>of</strong> whether s. 470 <strong>of</strong><br />
the MGA provides an adequate alternative remedy. Justice Ross has already performed that<br />
analysis in Associated Developers, at paras 21-22, 71, concluding that s. 470 provided an<br />
adequate alternative remedy for questions <strong>of</strong> law. See also Precision Drilling Corporation v.<br />
Calgary (City), 2011 ABQB 503at para 34.
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[132] I concur. While a hearing on the merits may not be the most expeditious or cost-effective<br />
procedure, it provides an opportunity for both sides to be heard. The process may not provide for<br />
a “shortcut” via the remedy <strong>of</strong> declaration, it may take longer and be more expensive, but the<br />
complainant can ultimately secure relief through a change in the assessment amount. Though this<br />
process may appear wasteful to CNRL, it nevertheless provides an adequate alternative remedy.<br />
It is not for this <strong>Court</strong> to second-guess the Legislature’s choice <strong>of</strong> the complaint process.<br />
[133] In light <strong>of</strong> my findings above, I deny leave to appeal on Question 1.<br />
2. Did the CARB err in finding that CNRL failed to raise equity as an issue in its<br />
Complaint Form and was therefore precluded from raising it in the hearing on the<br />
merits?<br />
(a)<br />
Question <strong>of</strong> Law or Jurisdiction<br />
[134] Questions 2 and 3 are similar in that at first blush, they each appear to involve the<br />
application <strong>of</strong> a legal test to the particular facts (in this question, the contents <strong>of</strong> the Complaint<br />
Form), a classic case <strong>of</strong> mixed fact and law. In my view, however, Question 2 raises a much<br />
broader question <strong>of</strong> law, a question that can be successfully extricated from the mix <strong>of</strong> fact and<br />
law. That question is whether failure to explicitly identify an issue on the Complaint Form is<br />
equivalent to not raising that issue at all.<br />
[135] Phrased this way, the question engages matters <strong>of</strong> general law on pleadings and evidence.<br />
This <strong>Court</strong> has more experience in adjudicating on matters <strong>of</strong> general law than the Board. The<br />
question also necessarily raises the issue <strong>of</strong> what is the appropriate form <strong>of</strong> pleadings before the<br />
CARB. As such, it moves away from “utter particularity” referred to in Southam , at para. 37<br />
and becomes a matter <strong>of</strong> potentially broad application. These factors support characterizing<br />
Question 2 as a question <strong>of</strong> law.<br />
[136] Alternatively, the CARB’s decision may be characterized as an error that can be<br />
attributed to the application <strong>of</strong> an incorrect standard. In other words, in interpreting Complaint<br />
Forms, the CARB has imposed an unreasonably strict standard upon the taxpayers. Per Housen,<br />
at para 36, such an error can be properly characterized as an error <strong>of</strong> law.<br />
(b)<br />
Sufficient Importance<br />
[137] Question 2 clearly raises matters <strong>of</strong> substantial jurisprudential importance. There is a<br />
strong need to set a precedent as to what level <strong>of</strong> particularity is expected <strong>of</strong> a taxpayer in filling<br />
out a Complaint Form.<br />
(c)<br />
Reasonable Chance <strong>of</strong> Success
Page: 27<br />
[138] This question rises far beyond the narrow facts <strong>of</strong> this case. It engages principles <strong>of</strong><br />
general law with respect to pleadings and evidence. In addition, it does not concern interpretation<br />
<strong>of</strong> the Board’s home statute or specific procedures. It concerns the construction <strong>of</strong> pleadings. As<br />
a result, Question 2 presents an issue that is <strong>of</strong> central importance to the legal system as a whole<br />
and outside the specialized area <strong>of</strong> expertise <strong>of</strong> the administrative decision maker. The<br />
appropriate standard <strong>of</strong> review is correctness.<br />
[139] The Complaint Form itself is a form prescribed by an enactment. Section 4 <strong>of</strong> the<br />
complaint form contains a number <strong>of</strong> “check boxes”, numbered 1-10, that relate to specific<br />
“Matters for a Complaint”. This reads:<br />
A complaint to the assessment review board may be about any one <strong>of</strong> the following<br />
matters shown on an assessment notice or on a tax notice (other than a property tax<br />
notice)”<br />
1. the description <strong>of</strong> the property 6. the type <strong>of</strong> property<br />
2. the name or mailing address <strong>of</strong> an 7. the type <strong>of</strong> an improvement<br />
assessed person or taxpayer 8. school support<br />
3. an assessment amount 9. whether the property is assessable<br />
4. an assessment class 10. whether the property or business is<br />
5. an assessment sub-class exempt from taxation.<br />
[140] Section 5 <strong>of</strong> the Complaint Form is titled “Reason(s) for Complaint” and contains a small<br />
box for text. In this case, CNRL attached a Schedule setting out its reasons for complaint.<br />
[141] Having reviewed CNRL’s Complaint Form and the attached Schedule, and bearing in<br />
mind the applicable standard <strong>of</strong> review, I conclude that there is a reasonable chance <strong>of</strong> success on<br />
this issue. I agree that the general principle is that pleadings should be read liberally, whether in<br />
civil litigation or administrative disputes. This principle is not limited to applications to strike:<br />
see ATCO Electric Ltd v Manning Rural Electrification Association Limited, 2011 ABQB 333<br />
at para 13; Dostie v Royal & Sunalliance Insurance Company <strong>of</strong> Canada, 2004 NBQB 195 at<br />
paras 7-8; Non-Marine Underwriters, Lloyd's <strong>of</strong> London v Scalera, 1997 CanLII 12605 at para<br />
13 (BCSC).<br />
[142] It also comports with the express direction <strong>of</strong> the Interpretation Act, RSA 2000, c I-8,<br />
which provides:<br />
26(1) When a form is prescribed by or under an enactment, deviations from it not<br />
affecting the substance and not calculated to mislead do not invalidate the form used.<br />
[143] Hence, the CARB cannot elevate form over substance in interpreting CNRL’s Complaint<br />
Form. Although Schedule “A” to the Complaint Form never lists “equity” as a separate issue, it
Page: 28<br />
continuously refers to the amended assessment as “arbitrary.” In addition, CNRL’s Schedule<br />
explicitly refers to the assessment as “inequitable” under the heading “Grounds <strong>of</strong> Appeal”.<br />
[144] I agree with CNRL that, on a liberal reading, these references impliedly raise equity as an<br />
issue. On the totality <strong>of</strong> the evidence before me, I accept that the substance <strong>of</strong> CNRL’s Complaint<br />
Form raised the issue <strong>of</strong> equity before the CARB. Denying CNRL an opportunity to raise equity<br />
because it was not separately spelled out as an “issue” represents unnecessary formalism and<br />
elevates form over substance.<br />
[145] Finally, I would accept CNRL’s argument that the Respondent Municipality’s<br />
interpretation <strong>of</strong> the Complaint Form would never permit a taxpayer to raise equity as an issue<br />
before the CARB. Section 4 <strong>of</strong> the Complaint Form permits the complainant to pick “matters”<br />
for a complaint by ticking one or more <strong>of</strong> ten boxes that correspond to specific matters. None <strong>of</strong><br />
the boxes refer to equity as a separate “matter”.<br />
[146] Again, it may well be that CNRL was not sufficiently clear in identifying equity as an<br />
issue in Schedule “A” to the Complaint Form. However, it is not my role to adjudicate this issue<br />
on the merits. Given the standard <strong>of</strong> review and the legal principles involved, I am satisfied that<br />
CNRL has a reasonable chance <strong>of</strong> success on Question 2.<br />
[147] As a result, I grant leave to appeal on Question 2.<br />
3. Did the CARB err in finding that the Municipality had complied with CNRL’s s.<br />
299 request?<br />
(a)<br />
Question <strong>of</strong> Law or Jurisdiction<br />
[148] Initially, the question <strong>of</strong> whether the Municipality complied with CNRL’s information<br />
request appears to involve the application <strong>of</strong> a legal test to highly specific facts. Arguably, all the<br />
CARB did was determine whether the Municipality’s response complied with the requirements<br />
<strong>of</strong> s. 299 <strong>of</strong> the MGA. A question <strong>of</strong> whether the Board erred in this regard would tend to fall<br />
closer to the factual end <strong>of</strong> the continuum identified in Southam. It is tempting to characterize it<br />
as a question <strong>of</strong> mixed law and fact.<br />
[149] However, such construction misses the broader issues raised by CNRL’s appeal. Question<br />
3 gives rise to a far more important issue: what kind <strong>of</strong> a response will generally satisfy the<br />
requirements in s. 299 <strong>of</strong> the MGA? It can be restated as follows: did the CARB err in finding<br />
that the Municipality’s cursory reply satisfied the requirements <strong>of</strong> s. 299?<br />
[150] Restated this way, the question moves much closer towards the legal end <strong>of</strong> the spectrum<br />
in Southam, . It now becomes a matter <strong>of</strong> statutory interpretation. The inquiry now focuses on<br />
whether the Municipality’s reply, the nature <strong>of</strong> which is undisputed, satisfies the definition <strong>of</strong>
Page: 29<br />
“sufficient information” in s. 299(1.1) <strong>of</strong> the MGA. This is a textbook example <strong>of</strong> a question <strong>of</strong><br />
law, coincidentally described in Wade’s Administrative Law, at 943.<br />
[151] Finally, the interpretation <strong>of</strong> s. 299 has the potential to apply widely to many future cases.<br />
A clear understanding <strong>of</strong> precisely what is required by s. 299 <strong>of</strong> the MGA would benefit both<br />
taxpayers and municipalities who find themselves in similar situations in the future. In line with<br />
the authority in Pezim, it is appropriate to characterize Question 3 as a question <strong>of</strong> law.<br />
(b)<br />
Sufficient Importance<br />
[152] In light <strong>of</strong> my findings in the previous paragraph, it is clear that this question is important<br />
for jurisprudential purposes. I am satisfied that the second branch <strong>of</strong> the test is met.<br />
(c)<br />
Reasonable Chance <strong>of</strong> Success<br />
[153] As this question involves interpretation <strong>of</strong> the CARB’s home statute, there is a<br />
presumption that the appropriate standard <strong>of</strong> review is reasonableness: <strong>Alberta</strong> Teachers’<br />
Association, .<br />
[154] Even on the most deferential standard <strong>of</strong> review, I am not convinced that the CARB’s<br />
decision on the s. 299 information request was reasonable.<br />
[155] The thrust <strong>of</strong> the Municipality’s argument before the CARB was that it has provided what<br />
CNRL had asked for. The CARB agreed with the Municipality.<br />
[156] In my view, the CARB’s decision appears to contradict the purpose and express wording<br />
<strong>of</strong> s. 299. Section 299 imposes stringent disclosure requirements upon the Municipality:<br />
299(1) An assessed person may ask the municipality, in the manner required by the<br />
municipality, to let the assessed person see or receive sufficient information to show<br />
how the assessor prepared the assessment <strong>of</strong> that person’s property.<br />
(1.1) For the purposes <strong>of</strong> subsection (1), “sufficient information” in respect <strong>of</strong> a<br />
person’s property must include<br />
(a) all documents, records and other information in respect <strong>of</strong> that property that<br />
the assessor has in the assessor’s possession or under the assessor’s control,<br />
(b) the key factors, components and variables <strong>of</strong> the valuation model applied in<br />
preparing the assessment <strong>of</strong> the property, and<br />
(c) any other information prescribed or otherwise described in the regulations.
Page: 30<br />
(2) The municipality must, in accordance with the regulations, comply with a request<br />
under subsection (1).<br />
[Emphasis added.]<br />
[157] The intent <strong>of</strong> s. 299 is clear: it is designed to facilitate disclosure <strong>of</strong> all relevant<br />
information to the taxpayer so as to avoid “trial by ambush” before the CARB. The disclosure<br />
provisions are extremely broad. They effectively require a full report. The Municipality must<br />
deliver or provide access to all information relevant to the assessment calculation, not just that<br />
requested by the taxpayer. If it were as the CARB says, the taxpayer would forever be caught in a<br />
vicious circle, where it would not have access to the information it never knew existed because it<br />
did not specifically request that information in the first place. Not only would this situation be<br />
absurd, it would also effectively negate the taxpayer’s fundamental right to know the case against<br />
them. The words and intent <strong>of</strong> s. 299 cannot reasonably support such construction.<br />
[158] I pause to note that I am not making any conclusive findings on the merits <strong>of</strong> CNRL’s<br />
argument. The Respondents raise a number <strong>of</strong> sound arguments, including the argument that s.<br />
299 only catches the information the Municipality has at the time <strong>of</strong> the s. 299 request. However,<br />
it is not my function to weigh the arguments on their merits. I only need to find that CNRL has a<br />
reasonable chance <strong>of</strong> success. In light <strong>of</strong> my findings above, I am satisfied that this is the case.<br />
Question 3 thus fulfills the third requirement for leave to appeal.<br />
[159] As a result, I grant leave to appeal on Question 3.<br />
4. Did the CARB err in finding that each party bears the onus to prove the included<br />
cost amount they believe is correct?<br />
(a)<br />
Question <strong>of</strong> Law or Jurisdiction<br />
[160] The issue <strong>of</strong> who bears the onus is without a doubt a question <strong>of</strong> law: R v Vandenberg,<br />
2010 ABQB 261at para 10; Polish Alliance <strong>of</strong> Canada v Polish Association <strong>of</strong> Toronto, 2010<br />
ONSC 5250 at para 19; United Food and Commercial Workers, Local 1400 v Westfair Foods<br />
Ltd, 2005 SKQB 187 at para 27; TimberWest Forest Corp (Trustee <strong>of</strong>) v Schmidt, 2002 BCSC<br />
831 at para 25. I find that Question 4 easily satisfies the first requirement for leave to appeal.<br />
(b)<br />
Sufficient Importance<br />
[161] The question <strong>of</strong> who bears the onus to prove the correct amount <strong>of</strong> assessment carries<br />
immense jurisprudential value. Once conclusively resolved by this <strong>Court</strong>, it will affect the<br />
practice and procedure <strong>of</strong> every proceeding before every CARB in this Province. I find that<br />
Question 4 satisfies the second requirement for leave to appeal.
Page: 31<br />
(c)<br />
Reasonable Chance <strong>of</strong> Success<br />
[162] In its decision CARB 027-2010/P, the CARB resolved the issue <strong>of</strong> onus by looking at s.<br />
467(1) <strong>of</strong> the MGA. I agree with the Board that interpreting <strong>of</strong> s. 467(1) is central to a proper<br />
determination <strong>of</strong> where the onus falls. As the answer turns on the interpretation <strong>of</strong> the CARB’s<br />
home statute, the appropriate standard <strong>of</strong> review is reasonableness: <strong>Alberta</strong> Teachers’<br />
Association, .<br />
[163] I have little difficulty concluding that CNRL has established a reasonable chance <strong>of</strong><br />
success on this issue. As a starting point, I agree with CNRL that a party who asserts a<br />
proposition bears the burden <strong>of</strong> proving it: Sopinka J et al. The Law <strong>of</strong> Evidence in Canada, 2d<br />
ed (Toronto: Butterworths, 1999) at 57-59, 63. Since CNRL is seeking to establish a lower<br />
assessment amount as correct, this principle would suggest that it has the burden to prove that<br />
number. At the same time, I am not convinced by CNRL’s argument that the Municipality’s s.<br />
299 response can be characterized as asserting a proposition which the Municipality has to prove.<br />
The statutory scheme established by s. 460 <strong>of</strong> the MGA clearly contemplates an appeal by the<br />
taxpayer, not the Municipality. In my view, this implies that the taxpayer bears the onus to show<br />
that the original assessment should be changed. This is an ordinary procedure on an appeal to an<br />
administrative tribunal. I thus see no basis for the CARB’s decision. There is nothing in the MGA<br />
to suggest that each party bears the onus to prove its own number as correct.<br />
[164] I also find that the CARB’s decision is problematic in principle. I am not aware <strong>of</strong> any<br />
area <strong>of</strong> law or any type <strong>of</strong> proceeding that employs the type <strong>of</strong> a “dual onus” the CARB suggests.<br />
The onus must rest with someone. It cannot be any other way. The allocation <strong>of</strong> onus becomes a<br />
determining factor where evidence is equally balanced: Robins v National Trust Co, [1927] AC<br />
515, 2 DLR 97 (PC). In an ordinary civil case, if the evidence equally favours the plaintiff and<br />
the defendant, the defendant is entitled to succeed because the plaintiff carries the burden to<br />
prove his case on the balance <strong>of</strong> probabilities: Alan W Bryant, Sidney N Lederman & Michelle K<br />
Fuerst, The Law <strong>of</strong> Evidence in Canada, 3d ed (Markham: LexisNexis, 2009) at 113. That means<br />
the plaintiff must overcome the 50% threshold. If the CARB’s view <strong>of</strong> the onus were correct,<br />
then if CNRL’s and the Municipality came up with equally persuasive evidence for their<br />
respective numbers, the CARB would forever be suspended in a limbo, legally unable to declare<br />
either party successful. Even on the most deferential approach, the CARB’s decision with respect<br />
to onus is unreasonable.<br />
[165] CNRL also asks this <strong>Court</strong> to decide whether a Municipality or an Assessor is entitled to<br />
seek a further increase in an assessment at a CARB hearing. Having reviewed Decisions 007-<br />
2010/P and 027-2010/P, I find that the CARB did not expressly address this issue and therefore it<br />
is not properly before this court. An appeal only lies from a decision <strong>of</strong> the Board: MGA, s.<br />
470(1).<br />
[166] Nevertheless, I do not think that the Municipality can seek a further increase in the<br />
assessment amount before the CARB. While I agree that the word “change” in s. 467(1) <strong>of</strong> the
Page: 32<br />
MGA implies both an upward and a downward adjustment, s. 460(3) expressly provides that only<br />
a taxpayer or an assessed person is entitled to make a complaint to the CARB. A complaint<br />
belongs to the taxpayer, not the Municipality. It gives the taxpayer an opportunity to demonstrate<br />
what the correct number should be: CARB 007-2010/P at 9. The Municipality cannot then come<br />
in and ask the CARB to change the assessment to an altogether different number; it can only<br />
defend the assessed amount as correct. This reading <strong>of</strong> the legislation addresses concerns<br />
expressed by Rothman J. In Les Immeubles BP Ltee v Ville D’Anjou et al (1978), 4 MPLR 1<br />
(Que SC) at para 21:<br />
I find it very difficult to conceive that the Legislature, in providing a procedure <strong>of</strong> review<br />
in favour <strong>of</strong> dissatisfied ratepayers, would have intended that these ratepayers could find<br />
themselves penalized for having exercised their rights by having to face a decision <strong>of</strong><br />
[increasing the assessment] and in respect to which the municipalities might not even<br />
have a right to complain had the ratepayers not filled complaints.<br />
[167] I am satisfied that CNRL has a reasonable chance <strong>of</strong> success on Question 4. As a result, I<br />
grant leave to appeal on Question 4.<br />
5. Can CNRL seek leave on the issue <strong>of</strong> bias, even though the CARB was not asked to<br />
rule on this issue?<br />
[168] The issue <strong>of</strong> bias and institutional independence was not raised or argued before the<br />
CARB. This is not necessarily fatal to an application. The authors, Jones and DeVillars, in<br />
th<br />
Principles <strong>of</strong> Administrative Law, (5 ed.) (Toronto: Carswell, 2009) note that sometimes it will<br />
be more efficient for a bias allegation to be heard by the tribunal, other times by the court (at<br />
450). They note a number <strong>of</strong> factors that should be considered, including the time and expense,<br />
the strength <strong>of</strong> the applicant’s case, the completeness <strong>of</strong> the record, whether the tribunal could<br />
remedy the complained <strong>of</strong> bias, the sophistication <strong>of</strong> the tribunal, the court’s assessment <strong>of</strong> the<br />
value <strong>of</strong> the tribunal’s opinion on the allegations <strong>of</strong> bias, and whether the tribunal is subject to<br />
discovery on the issue. The authors note:<br />
The application <strong>of</strong> these factors will generally be enough to differentiate between cases<br />
where bias ought to have been raised before the tribunal, and cases where it may be raised<br />
for the first time on judicial review.<br />
[169] I conclude that based on these factors, it is appropriate for the <strong>Court</strong> to deal with the<br />
question <strong>of</strong> institutional independence raised by CNRL. Among the factors that support this<br />
conclusion is the fact that the institutional bias allegation is not something that the CARB could<br />
remedy and the CARB’s opinion <strong>of</strong> the allegations would not be <strong>of</strong> assistance. As well, the full<br />
record on this issue is before the <strong>Court</strong>. Moreover, as discussed later in these reasons, the<br />
applicant’s case is not strong.
Page: 33<br />
[170] I note further that by virtue <strong>of</strong> its inherent jurisdiction, this <strong>Court</strong>’s has a discretionary<br />
power to conduct judicial review on issues that were not raised before the administrative tribunal:<br />
<strong>Alberta</strong> Teachers’ Association, at para 22. It is likely that the same reasoning applies to a<br />
statutory appeal.<br />
[171] Here, CNRL raises questions about the institutional independence because the CARB<br />
members do not have security <strong>of</strong> tenure under the MGA, only by virtue <strong>of</strong> the Municipality’s bylaw<br />
appointing the members, and because the Clerk who administers the CARB’s administration<br />
is appointed by the Municipality’s Chief Administrative Officer.<br />
(a)<br />
Question <strong>of</strong> Law or Jurisdiction<br />
[172] Bias raises both a question <strong>of</strong> law and jurisdiction. In Lavesta Area Group Inc v <strong>Alberta</strong><br />
(Energy and Utilities Board), 2011 ABCA 108 at para 15, the <strong>Alberta</strong> <strong>Court</strong> <strong>of</strong> Appeal has<br />
confirmed that allegations <strong>of</strong> bias raise a question <strong>of</strong> law:<br />
The question <strong>of</strong> whether an administrative decision is compromised as a result <strong>of</strong> a<br />
reasonable apprehension <strong>of</strong> bias raises a question <strong>of</strong> law <strong>of</strong> central importance to the legal<br />
system which is outside the particular area <strong>of</strong> expertise <strong>of</strong> the Commission. Accordingly,<br />
if leave is granted Decision 2010-542 would be reviewed on a standard <strong>of</strong> correctness.<br />
See also: Dunsmuir, at para 60.<br />
(b)<br />
Sufficient Importance<br />
[173] The question <strong>of</strong> whether the CARB’s handling <strong>of</strong> CNRL’s complaint raises a reasonable<br />
apprehension <strong>of</strong> bias does not affect the interests <strong>of</strong> CNRL alone. Every taxpayer filing a<br />
complaint before the CARB has an interest in a fair and impartial hearing. If bias is found to<br />
exist, this will affect practice and procedure for every future complainant. This issue is clearly<br />
important for jurisprudential purposes.<br />
(c)<br />
Reasonable Chance <strong>of</strong> Success<br />
[174] It is at this last stage <strong>of</strong> the analysis where CNRL’s argument fails. CNRL argues that the<br />
CARB’s proceedings raise reasonable apprehension <strong>of</strong> bias because the Board lacks requisite<br />
institutional independence. CNRL contends that the first two factors <strong>of</strong> institutional<br />
independence identified in Valente, , financial security and security <strong>of</strong> tenure, are “entirely<br />
absent” in the empowering legislation. However, as the CARB correctly points out, this ignores<br />
ss. 23 and 24 <strong>of</strong> Bylaw 10/003. Section 23 prescribes a finite 2-year term <strong>of</strong> <strong>of</strong>fice with no<br />
provisions for early termination. Section 24 fixes the board members’ remuneration by reference<br />
to the Government <strong>of</strong> <strong>Alberta</strong> Order in Council 004/2008 and its succeeding legislation. I find
Page: 34<br />
that these provisions provide adequate financial security and security <strong>of</strong> tenure for the CARB’s<br />
members.<br />
[175] CNRL further submits that the CARB does not have sufficient administrative autonomy,<br />
because the Municipality’s Chief Administrative Officer appoints the Board’s clerk. Weighing it<br />
against clear provisions assuring financial security and security <strong>of</strong> tenure, I do not consider this<br />
factor significant. In general, the Valente criteria for institutional independence are less strict for<br />
administrative tribunals than they are for the courts: Canadian Pacific, at paras 83-85. I accept<br />
the CARB’s argument that the Clerk has limited opportunity to affect the outcome <strong>of</strong> the<br />
hearings, since they are scheduled through consultation with, and by agreement <strong>of</strong>, counsel for<br />
both sides. Whatever conflict <strong>of</strong> interest may arise from the Clerk’s power to assign Board<br />
members to particular hearings, is easily outweighed by sufficient financial security and security<br />
<strong>of</strong> tenure, and the mandatory presence <strong>of</strong> a provincially-appointed presiding member: Bylaw<br />
10/003, ss. 18-21.<br />
[176] I conclude that CNRL has not established a reasonable chance <strong>of</strong> success on the issue <strong>of</strong><br />
bias.<br />
[177] As a result, I deny leave to appeal on this question.<br />
6. Remaining issues and availability <strong>of</strong> judicial review<br />
[178] In closing, I also note that CNRL seeks leave to appeal on a range <strong>of</strong> additional questions<br />
not discussed in my reasons. I find that many <strong>of</strong> the issues raised by CNRL can be collapsed<br />
within the five questions I have identified above, or characterized as sub-issues. Where they<br />
could be presented as sub-issues, I have addressed CNRL’s questions throughout my reasons.<br />
Other questions raised by CNRL, such as the legislative intent <strong>of</strong> s. 299 <strong>of</strong> the MGA, will have to<br />
be decided in an appeal on the merits. Accordingly, I choose not to address them in this<br />
application for leave. One remaining issue requires comment.<br />
[179] I have denied leave to appeal on the question <strong>of</strong> whether the CARB correctly interpreted<br />
the MGA in concluding that it could not grant declaratory relief on the question <strong>of</strong> whether the<br />
amended assessment was illegal. This does not address the entirety <strong>of</strong> CNRL’s concerns. In<br />
particular, CNRL asserted that the assessor did not follow the regulated process and admitted that<br />
the adjustment factor came from reference to an OSDG report. This is a question <strong>of</strong> mixed fact<br />
and law. As held in Dunsmuir, and noted in Associated Developers and Precision Drilling and<br />
the cases discussed therein, the Legislature cannot oust the superior court’s inherent jurisdiction<br />
to review the decisions <strong>of</strong> statutory tribunals. On the other hand, judicial review is discretionary<br />
and the <strong>Court</strong>s will not exercise that discretion if there is an adequate alternative remedy. In my<br />
view, it is premature to conduct judicial review at this preliminary stage, before the hearing on<br />
the merits has been held. The merit hearing constitutes an adequate alternative remedy, as the<br />
CARB hearing will give CNRL the opportunity to present evidence on what the assessment<br />
should be.
Page: 35<br />
VI.<br />
CONCLUSION<br />
[180] I dispose <strong>of</strong> the questions in this Application for Leave to Appeal as follows:<br />
1. Did the CARB err in finding that its authority was limited to changing the<br />
amount <strong>of</strong> assessment?<br />
Leave denied.<br />
2. Did the CARB err in finding that the Municipality had complied with<br />
CNRL’s s. 299 request?<br />
Leave granted.<br />
3. Did the CARB err in finding that CNRL failed to raise equity as an issue in<br />
its Complaint Form and was therefore precluded from raising it in the<br />
hearing on the merits?<br />
Leave granted.<br />
4. Did the CARB err in finding that each party bears the onus to prove the<br />
included cost amount they believe is correct?<br />
Leave granted.<br />
5. Can CNRL seek leave on the issue <strong>of</strong> bias, even though the CARB was not<br />
asked to rule on this issue?<br />
Leave denied.<br />
[181] The parties may speak to costs within 60 days <strong>of</strong> the issue <strong>of</strong> this decision.<br />
th<br />
Heard on the 30 day <strong>of</strong> September, 2011.<br />
th<br />
Dated at the City <strong>of</strong> Edmonton, <strong>Alberta</strong>, this 14 day <strong>of</strong> March, 2012.<br />
D.A. Sulyma<br />
J.C.Q.B.A.
Page: 36<br />
Appearances:<br />
Gilbert J. Ludwig<br />
Wilson Laycraft<br />
for the Applicant<br />
Carol M. Zukiwski<br />
<strong>Reynolds</strong>, <strong>Mirth</strong>, <strong>Richards</strong> & Farmer LLP<br />
for the Respondent the Regional Municipality <strong>of</strong> Wood Buffalo<br />
Gwendolyn J. Stewart-Palmer<br />
Shores Jardine LLP<br />
for the Respondent the Regional Municipality <strong>of</strong> Wood Buffalo Composite Assessment<br />
Review Board