THE COURT OF APPEAL FOR SASKATCHEWAN WASCANA ENERGY INC. and THE RURAL MUNICIPALITY OF GULL LAKE NO. 139 SASKATCHEWAN ASSESSMENT MANAGEMENT AGENCY RESPONDENTS CORAM: The Honourable Chief Justice Bayda The Honourable Mr. Justice Cameron The Honourable Mr. Justice Sherstobitoff COUNSEL: Mr. Patrick N. McDonald for the appellant Mr. R. Allen McLash for the respondent DISPOSITION: Appeal Heard: February 12, 1998 Appeal Allowed: May 11, 1998 On Appeal From: The Saskatchewan Municipal Board Appeal File: 2836 Reasons by: The Honourable Mr. Justice Cameron for the Court CAMERON J.A. [1] The question in this case is whether the right of appeal to a board of revision against a municipal tax assessment was exercised properly, or at least effectively, having regard for the governing provisions of the statute and the fact of how and when notice of appeal was given. [2] The governing provisions of the statute are those contained in subsection 303(1) of The Rural Municipality Act, 1989, S.S 1989-90, c. R-26.1. This subsection empowers person to appeal against an assessment thought to have been made in error: 303(1) If any person thinks that an error has been made... he or she, within 20 days after the day on which the notice of assessment is mailed to the person or, if no notice is mailed to the person, within 20 days of the publications of the notice mentioned in section 301, may give notice in writing in form approved by the minister to the administrator that he or she appeals to the board of revision to correct the error.. [3] The facts are these. On May 27, 1994 the assessor for the R. M. of Gull Lake published notice of assessment in the Saskatchewan Gazette in accordance with section 301 of the Act, notifying property owners of their 1994 assessments. This included Wascana Energy Ltd., the owner of gas compressor station situated in the municipality. Based upon the assessment, the company was called upon to pay taxes of $214,100.00 in connection with the station. [4] Thinking the assessment had been made in error, the company decided to appeal to the board of revision. To that end, it prepared notice of appeal in approved form and sent it by registered mail to the administrator of the R.M. The company posted the notice on Wednesday, June 15, 1994, the day before the expiration of the 20 day appeal period. The notice arrived in the Gull Lake Post Office on Friday, June 17, the day after the expiration of the period. The administrator picked it up on the following Monday, and then wrote Wascana Energy, informing the company that its appeal would not be entertained by the board of revision because of the late receipt of the notice of appeal. [5] Those are the basic facts. What followed was this. On receipt of the administrator's letter the company turned to the Appeals Committee of the Saskatchewan Municipal Board, asking the Committee to direct the board of revision to hear the appeal. The Committee declined to do so, for in its opinion the company had failed to give notice of appeal to the administrator within the period prescribed by subsection 303(1) and the board did not have the power to extend the period. With an eye to the decision of this Court in Regina (City) v. Newell Smelski Ltd. (1997), 1996 CanLII 5084 (SK CA), 152 Sask. R. 44, which noted that substantial compliance with statutory requirements of this nature can be sufficient, the Committee said this was not so in this instance, adding that the failure to give notice to the administrator in time nullified the purported exercise of the right of appeal, leaving the board without jurisdiction. [6] The company then appealed to this Court, having first obtained leave to do so, contending the Committee had erred in law in holding that the company had failed to exercise its right of appeal properly, in keeping with the terms of subsection 303(1) or, alternatively, in deciding that the notice of appeal was ineffective and the board of revision bereft of jurisdiction in consequence of the late receipt of the notice of appeal by the administrator. [7] This much is clear. The Committee did not err in deciding that the prescribed period during which an appeal may be taken is incapable of extension. The Act does not confer any power of enlargement, and in the absence of such power statutory appeal period cannot be extended: Jordan v. Saskatchewan Securities Commission (1968), 1968 CanLII 519 (SK CA), 64 W.W.R. 121 (Sask.C.A.). [8] In Jordan's case the notice was sent after the statutory appeal period had expired, with nothing having been done beforehand. In other words, there was complete failure to exercise the right of appeal within the prescribed period. That being so, and since the period could not be extended in the absence of power of enlargement in the statute, the Court held that the appeal could not be entertained. [9] Unlike the situation in Jordan's case, the notice of appeal in this case had been sent but not received within the prescribed period. In other words, some steps in exercise of the right of appeal had been taken before the expiration of the period, including the mailing of the notice of appeal by registered mail. If the enactment allows for giving notice by registered mail, then this case gives rise to different set of issues, for in that event the question is whether Wascana Energy, in giving notice of appeal as it did, exercised its right of appeal either properly, which is to say in compliance with the terms of the subsection, or effectively, which is to say in sufficient compliance therewith to render the notice of appeal effective and empower the board to hear the appeal. Only if subsection 303(1) of the Act does not contemplate giving notice of appeal by registered mail is this case indistinguishable from Jordan's case, for only then could there have been complete failure to exercise the right of appeal within the prescribed period. [10] Subsection 303(1), the sole provision bearing upon the matter, does not specify how notice of appeal might be given. It says only that person "may give notice in writing ...to the administrator." Whether this allows for giving notice by means of registered mail is an issue of pure statutory interpretation and therefore depends in short upon what the legislature most probably intended, given the wording, purpose, and objectives of the provisions of the subsection when viewed in the light of the scheme of the enactment. [11] With this in mind, the phrase "may give notice in writing" must be taken by implication to allow for notice to be given by means of registered mail. Were it otherwise, an administrator, having received notice of appeal by registered mail within the allotted time, could lawfully decline to act upon it on the footing the property owner had failed to give notice. That would be absurd, and the legislature cannot be taken to have so intended, having regard for the language of the subsection and the commonplace matter with which it was dealing. [12] The subsection empowers persons to give notice to, as distinct from requiring them to serve notice upon, the administrator. This is less formal expression suggesting less exacting term. Moreover, and more importantly, this is an Act of such commonplace application as to strongly suggest notice might be given by registered mail, applying as it does to almost everyone in every corner of the rural areas of the Province, and falling as it does to be applied by local people with no special training, except for the administrators. Indeed this is suggestive, generally, of an appeal process intended to operate along ordinary lines, consistent with everyday practice and expectation. [13] And so in addition to enabling person to give notice to the administrator in the most obvious way, which is to say by simply handing it to the administrator at the municipal office, the subsection is to be interpreted as enabling person to give notice by way of registered mail. [14] Of course, giving notice by way of registered mail, unlike giving notice by way of handing it to the administrator, does not entail single act occurring at fixed moment in time. It entails series of acts occurring over span of time, beginning with posting, continuing with delivery, and ending with receipt. And so subsection 303(1) can give rise to uncertainty in its application, as it did here, raising further issues of interpretation. [15] Can person who posts such notice during the 20 day period be said to have satisfied the term of the subsection that calls upon persons wishing to appeal to give notice to the administrator within this period? Or must the notice first be received? [16] With the parties at odds over this, the Committee decided that the administrator must be in receipt thereof before the notice can be said to have been given in compliance with the subsection. What counts, the committee observed, was "giving the notice of appeal to the Administrator, not giving notice of appeal to the postal system." While this observation compares the requirement to give notice with the means by which it might be given, there remains much to be said for the comparative significance of the posting of notice of appeal and of the receipt of the notice within the prescribed period. [17] In the context of ascribing precise meaning to the word give, receipt might be seen as necessary component thereof. This is especially so if by give the legislature meant serve legal term of art signifying formal delivery and actual or constructive receipt. In that event, the subsection, in calling for written notice to be given to the administrator, would call for both the posting and the receipt of the notice within the prescribed time. On the other hand, in using the ordinary word give instead of the legal term serve, the legislature might be seen as having intended less formal requirement, one satisfied by the posting of notice within the prescribed period, consistent with the commonplace application of this enactment. [18] In any event, this is comparatively narrow context, concerned as it is with the meaning of the word give in virtual isolation, removed from the purpose of the subsection and the objectives of its terms. The principal purpose of the subsection is to confer upon local taxpayers the right to dispute the validity of local government tax assessments, an important individual right closely associated with one of the fundamental taxing requirements of the statute, namely the relatively fair and equitable distribution among taxpayers of the burden of property taxes. To achieve the principal purpose of the subsection, the legislature established simple set of terms, found in section 303, prescribing the manner and time in which this right may be exercised. It also constituted the rural municipal councils as boards of revision, empowering them to hear and determine such appeals, all as provided for in sections 305 through to 313. [19] According to the terms of subsection 303(1), written notice in approved form is to be given to the administrator, as the clerk and secretary to the board of revision according to section 305(5), within 20 days of the mailing or publication of the disputed assessment. These terms have two-fold objective: first, to enable the taxpayer to exercise the right of appeal by simply notifying the administrator, in approved form and within the prescribed period, of the intention to appeal; and second, to enable the board of revision to determine the appeal in keeping with the taxing scheme of the enactment. [20] In this scheme of things, the assessor is required by sections 294 and 301 to prepare an annual assessment roll no later than May 31st and to publish or mail notice thereof within two weeks thereafter. The 20 day appeal period begins to run with this publication or mailing, as the case may be. In the event of an appeal the administrator, as clerk and secretary to the board of revision, is required by section 304 to immediately notify everyone affected thereby of the time and place of the sittings of the board. The board, in turn, is required by section 312 to hear and determine the appeal by August 1st, the deadline for concluding this appeal process. The conclusion of the appeal process paves the way for the Saskatchewan Assessment Management Agency to then confirm the assessment roll for the year. [21] Ordinarily the assessment rolls are prepared, and the notices of assessment published, well in advance of May 31st. Indeed the bulk of these notices appear in the Gazette in late March and early April, allowing for considerably more time for this process to work in practice. But the fact remains that it is the date of August 1st of each year that drives the several time requirements found in these provisions, including the 20 day appeal period prescribed by subsection 303(1). [22] similar scheme appears in The Urban Municipality Act, 1984, S.S. 1983-84, c. U-11, referred to in Regina (City) v. Newell Smelski Ltd., cited earlier. In delivering judgment in Smelski's case we remarked upon the significance of time requirements of this sort, suggesting that the essential significance of each of them lay in the ultimate goal of all of them: The scheme is concerned with assessment, preparation of an annual assessment roll, appeals against assessment, confirmation of the annual roll, and so on, which are mapped out with series of timing marks. But the marks are more significant in their cumulative than in their individual effect, for they are designed on the whole to meet an ultimate annual objective in timely fashion.[p.52]. [23] Hence, the fundamental significance of the term of subsection 303(1) requiring that notice of appeal be given within 20 days of the mailing or publication of the notice of assessment lies in the goal of section 312, namely in the disposition of such appeal by the deadline of August 1st. And so the undoubted objective of this term is to afford the board of revision sufficient time to determine an appeal by this date. [24] This suggests that rural taxpayer who posts notice of appeal by registered mail within the prescribed period will have satisfied the time requirement of the subsection, for ordinarily such posting will satisfy each of the objectives of subsection 303(1), as well as the goal of section 312. In other words, such notice may be expected in the ordinary course to reach the administrator within few days of its mailing and to enable the board of revision to take up the appeal and determine it by August 1st. [25] Unlike its urban counterpart, this Act does not reduce these ordinary expectations to certainties by deeming notice given by means of registered mail to have been received on specified day the fifth day following the date of its mailing in the case of section 330 of The Urban Municipality Act, 1984. This makes it more difficult, when necessary, to determine if and when the exercise of this right of appeal gives rise to the corresponding duty in the board of revision to entertain the appeal. That is different matter, however, going not to the manner but to the effect of the exercise of the right in one way or another. [26] In the light of all this, including the ambiguity associated with the use of the word give instead of the term serve, coupled with the indications of the purpose of the subsection and its objectives, one might reasonably interpret the statutory terms governing the exercise of the right of appeal as calling for no more, necessarily, than the posting of the requisite notice by registered mail before the expiration of the 20 day period. Such posting could not, in itself, raise any duty in the administrator or the board, for their corresponding statutory duties can only arise on receipt of notice of appeal. But this is not of much significance, for the administrator and the board would be bound on timely receipt of such notice to act upon it, if by timely receipt was understood to mean receipt in sufficient time to enable them to perform their duties, having regard especially for the August 1st deadline. [27] Although this interpretation would leave the resolution of such matters to principle, rather than rule, often more difficult matter, virtually all of the indications of legislative intent point in this direction. [28] The alternative is to treat the word give as importing the necessity of receipt, just as the Committee did. From the point of view of the administrator and the board of revision, this would add desirable measure of bureaucratic certainty to the appeal process: notice of appeal could then be acted upon only if received before the 20 day period expires, not otherwise, not even if received in sufficient time to enable the board to regularly hear and determine the appeal. From the point of view of the taxpayer exercising the right of appeal by means of registered mail, however, this would add distinctly undesirable measure of individual uncertainty: The notice of appeal would only be effective if posted early enough to be received by the administrator before the 20 day period runs out, not otherwise, not even if posted ten days beforehand, or four or five, or whatever. [29] Having regard for this uncertainty, and bearing in mind the need to approach the construction and application of the provisions of subsection 303(1) from the perspective of the exercise of the right conferred by the subsection, ascribing this meaning to the word give is troublesome. Indeed, it is difficult to think that the proper exercise of the right of appeal, when notice of appeal be given by means of registered mail, should be made to depend not upon the posting of the notice within the 20 day period, something that lies within the power of the person exercising this right, but upon the receipt of the notice by the administrator within the period, something that is beyond the power of the person in the absence of provision deeming notice to be received within so many days of its mailing. [30] On the whole, then, the preferable view is that person who posts written notice in approved form by registered mail before the expiration of the 20 day period will have exercised the right of appeal in accordance with the terms of the subsection. [31] On that view of the matter, Wascana Energy is to be taken as having properly exercised the right of appeal. And since its notice of appeal was received in sufficient time to enable the board of revision to have heard and determined the appeal in keeping with the requirements of the enactment, the administrator was bound to act upon the notice and the board was bound to entertain the appeal. [32] Even if it were otherwise, even if the company had failed to exercise the right of appeal in full compliance with all of the terms of the subsection, the effect would not necessarily have been fatal, as noted in Regina (City) v. Newell Smelski Ltd.: To have had that effect an ultimate effect such imperfect compliance would have to have had the effect, first, of nullifying the act of service or the notice of intention to appeal or both, and hence of extinguishing the company’s right of appeal. But not every failure to observe statutory requirements of procedural nature [as they were there characterized by the statute] carries with it such effects. If the legislature does not expressly provide for the effect of imperfect compliance or noncompliance with requirement of this nature, the matter becomes one of implication, having regard for the subject matter of the enactment; the purposes of the requirement; the prejudice caused by the failure; the potential consequences of finding of nullity; and so on.[p. 51]. In support of this proposition we referred to Secretary of State for Trade and Industry v. Langridge; [1991] All E.R. 591 (C.A.) and Cote: The Interpretation of Legislation in Canada (2nd. Ed.) at pp.202 to 207. (One might also refer to Board of Education of Dysart School District et al v. Board of Education of Cupar School Division No 28 (1996), 1996 CanLII 5042 (SK CA), 148 Sask R. 41 (Sask.C.A.) and Howard v. Secretary of State for the Environment, [1974] All E.R. 644 (C.A.), per Lord Denning M. R. in particular). [33] Since the legislature said nothing of the possible effects of timely posting but untimely receipt of subsection 303(1) notice of appeal given by means of registered mail, the matter is one of implication, having regard for the considerations mentioned in Newell Smelski. In the light of what has already been said of the subject-matter and purpose of the subsection, together with the objectives of its provisions and the scheme of which it forms part, it is difficult to think the legislature intended that the effect should be fatal when the notice of appeal is posted within the prescribed time and arrives within sufficient time to allow for the hearing and determination of the appeal in keeping with the scheme of the enactment. [34] At worst, this amounts to substantial compliance of near perfect sort, as was the case here, where notice was mailed on the day before the period expired, was being delivered on the day of expiry, and was delivered the day after. As might have been expected, nothing turned on the fact the notice did not arrive day or two earlier, for the administrator and the board were still able to act upon it in accordance with the requirements of the statute. This was especially so in the circumstances, for the assessment had not only been completed well in advance of May 31st but had been published several days beforehand, leaving ample time for the performance of these duties. Nor did any other form of prejudice arise. [35] In conclusion, we are of the opinion that Wascana Energy exercised its right of appeal properly, or at least effectively, requiring the board of revision to entertain the appeal. And so the appeal from the decision of the Committee will be allowed, with costs as usual, and there will be an order directing the board of revision to hear and determine the company's assessment appeal. DATED at the City of Regina in the Province of Saskatchewan this ll th day of May 1998. Cameron J.A. concur .......................................................................... Bayda C.J.S. concur ............................................................................ Sherstobitoff J.A.
At issue was whether the right of appeal to a board of revision against a municipal tax assessment was exercised properly having regard for s303(1) of the Rural Municipality Act and how and when notice was given. The company posted the notice of appeal by registered mail the day before the expiration of the 20 day appeal period. The notice arrived at the post office on a Friday, the day after the period expired and was picked up by the administrator the following Monday. The Appeals Committee refused to direct the board of revision to hear the appeal on the basis the company failed to give notice within the period prescribed by s303(1) and concluded that the board did not have the power to extend the time. HELD: The appeal was allowed. The board of revision was directed to hear and determine the assessment appeal. 1)The Committee did not err in deciding the prescribed time period for an appeal could not be extended.  2)The less formal expression 'to give notice to' as used in the Act is a less exacting term than 'to serve notice upon'. Wascana Energy exercised its right of appeal properly, or at least effectively, requiring the board of revision to entertain the appeal.