THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2004 SKCA 60 Date: 20040423 Between: Docket: 852 Agrevo Canada Inc. Applicant/Proposed Appellant and City of Regina and Saskatchewan Assessment Management Agency Respondents/Proposed Respondents Between: Docket: 867 Acklands-Grainger Inc. Applicant/Proposed Appellant and City of Regina and Saskatchewan Assessment Management Agency Respondents/Proposed Respondents Before: Lane J.A. (in Chambers) Counsel: Robert G. Richards, Q.C. for the Applicant/Prospective Appellants Byron Werry for the Prospective Respondents Application: From: Assessment Appeals Committee of the Saskatchewan Municipal Board Heard: March 24, 2004 Disposition: Allowed in part Written Reasons: April 23, 2004 By: The Honourable Mr. Justice Lane LANE J.A. [1] The applicant applies for leave to appeal a decision of the Assessment Appeals Committee of the Saskatchewan Municipal Board on a question of law pursuant to s. 33.1 of The Municipal Board Act. [2] The test on such an application requires there exist question of law or question concerning the jurisdiction of the Board, doubt whether the Committee’s decision is correct, or there is question of such broad importance as to warrant the attention of the Court. [3] The test has been articulated in Shalk v. The City of Regina et al.,[2] by Chief Justice Bayda as follows: As have noted, leave to appeal may be granted if two prerequisites are satisfied. The question must be one of law. It must be one that merits the consideration of the Court. There is no doubt that in the present case the first prerequisite is satisfied. The questions as have recast them are clearly questions of law. It is the second prerequisite that causes the difficulty. For question to be sufficiently meritorious to place before the Court either the judge hearing the application for leave must have doubt, if not serious doubt, about whether the tribunal appealed from correctly decided the question, or the question must be of such broad importance that it deserves the attention of and the determination by higher authority irrespective of whether the judge has any doubt about the correctness of the tribunal's resolution.[3] The test in such applications must be strictly applied when the applicant seeks to appeal an assessment. In Regina (City) v. Gordstone Enterprises Ltd.,[4] Justice Cameron said: During argument on the motion informed counsel for the City that was not prepared to grant leave to appeal in relation to the procedural grounds and the issues of process to which they give rise. Since this Court's decision in Regina (City) v. Laing Property Corporation (1994), 1994 CanLII 4690 (SK CA), 128 Sask.R. 29, and the line of cases that followed, the system for review of assessments has undergone significant change in structure and practice. Currently, each of the reviewing bodies seems to have reasonably clear view of its function, genuine willingness to perform that function along the lines envisioned by the legislation, and an appropriate measure of deference for one another's decisions, as well as those of the Assessor. So basically, and in general, the system may be seen to be functioning properly. That being so, there is far less room now than there used to be for obtaining leave to appeal in relation to process‑oriented issues. This is especially so in light of the standards by which leave applications are determined. hasten to add that the door may still be opened, but the key to opening it is demonstrable case of concrete and material failure, particularly as it may relate to the general, though not necessarily so confined. The key certainly does not lie in speculative, abstract, or harmless failures of process related to the particular. Raising issues of that sort only adds to what are often substantively burdensome applications, making it more difficult to knife through to the core and hence more difficult to obtain leave.[5] The onus of establishing the ground is on the appellant.[6] [4] The applicant contends there are five questions of law and sets them out in the following manner: (a) Did the SMB err in failing to find that, by aggregating market adjustment factor (MAF) groups for purposes of determining the existence of abnormal, obsolescence for size, the Assessor contravened the Manual and, in particular, contravened Document 4.1.5? (b) Did the SMB err in failing to find that, by using invalid sales for determining abnormal obsolescence for size, the Assessor contravened the Manual and, in particular, contravened Document 1.1.6? (c) Did the SMB err, and act contrary to the Manual, particularly Document 4.1.5 thereof, by conflating trend analysis applicable to land size multiplier calculations with the analysis prescribed in the Manual for determining abnormal economic obsolescence? (d) Did the SMB err, and act contrary to the Manual, particularly Document 4.1.5 thereof, by failing to find that the Assessor should have used the comparable unit method of analysis in determining whether an adjustment for obsolescence for size should be applied to the Appellant’s property? (e) Did the SMB err, and contravene The Urban Municipality Act and the Manual, by finding that the Appellant had not discharged its onus of proof or, alternatively, by imposing an improper and unreasonable standard of proof on the Appellant? [5] The issues raised by the applicant relate to abnormal obsolescence for size and the refusal of the Assessor to apply abnormal obsolescence to the owner’s property. The issues also relate to some 15 other properties and as the issues are the same for each property they were decided by the Assessment Appeals Committee on one appeal. The Assessment Appeals Committee dismissed the appeals, finding the issue not to be matter of the Assessor’s discretion but matter of professional interpretation of data. The Committee found the Board of Revision did not err in its decision to dismiss the appeals and found the Board did not err on the issue of abnormal obsolescence for size. [6] At the outset I will dispose of two grounds: the use of invalid sales, and the alleged improper onus or standard of proof. On the first of these grounds I would deny leave on the basis the question of the sale is a question of fact and in argument the applicant said for its purposes the impugned sale did not matter. Further on perusal of the record the Assessor was fully aware the sale was portfolio sale, had contacted both the vendor and the purchaser, and provided particulars of the sales verification form as part of the evidence to the Board. [7] With regard to the issue of standard of proof I am not satisfied the Committee made any error and the issue has been decided by this Court. Leave to appeal this ground is denied. [8] In my view the issue of the aggregation of the MAF neighbourhoods merits consideration by the Court. The Assessor had determined the specific MAF neighbourhoods based on industrial property sales. The applicant contends that determination was necessary because the market operated differently in each neighbourhood and the properties in those neighbourhoods had to be segregated in order to value them accurately. However in determining the existence of abnormal obsolescence for size the Assessor worked on the basis of aggregated sales from different MAF neighbourhoods. The applicant contends that the factor of economic obsolescence is considered when the Assessor determines the MAF for each neighbourhood. The MAF in given neighbourhood might capture all of the economic obsolescence with the result there is no abnormal economic obsolescence, but on the other hand, the MAF might capture only some of the economic obsolescence such that the abnormal economic obsolescence could be significant factor. The applicant argues it is inappropriate to investigate the existence of abnormal obsolescence for size by doing broad inquiry which combined sales from many different MAF neighbourhoods. Whether the Manual should be read as requiring assessors to consider abnormal obsolescence for size on MAF group by MAF group basis or whether the approach taken by the Assessor is correct can be considered by the Court. [9] The applicant contends the use of “trend analysis” is appropriate to determine adjustments for size in the assessment of land but it is not an appropriate methodology to be used for the assessment of improvements. The Committee did not view the matter as one of assessor discretion but saw it as matter of professional interpretation of data. The respondent contends the statistical testing referred to in the land section of the Assessment Manual simply arises from the knowledge of statistical science and standard testing that is part of the professional judgment and expertise of the Assessor. The Assessment Manual does not preclude the use of standard statistical testing tools to conduct analysis. In my view no error has been demonstrated and no question of law arises. Leave to appeal this ground is denied. [10] Whether or not the Assessment Appeals Committee erred by failing to consider the “comparable unit method” pursuant to Document 4.1.5 of the Assessment Manual is linked to the issue of the aggregation of MAF neighbourhoods and leave to appeal on that ground is granted. [11] Leave to appeal is thereby granted on the following two questions of law: (1) Did the Committee err in its interpretation and application of the Saskatchewan Assessment Manual by failing to find that economic obsolescence for size must be categorized on MAF by MAF basis?; and (2) Did the Committee err by failing to find the Assessor should have used the comparable unit method to determine whether an adjustment for obsolescence for size should be applied to the applicant’s property? [12] Costs are left to the discretion of the panel hearing the matter. DATED at the City of Regina, in the Province of Saskatchewan, this 23rd day of April, A.D. 2004. LANE J.A. [1]S.S. 1988-89, c. M-23.1. [2][2000] S.J. No. 764 (Sask C.A.)(Q.L.); 2000 SKCA 140 (CanLII). [3]Ibid. [4][2003] S.J. No. 224 (Sask C.A.)(Q.L.); 2003 SKCA 36 (CanLII). [5]Ibid. [6]Canadian Midwest District of the Christian and Missionary Alliance Church v.Regina (City), 2002 SKCA 134 (CanLII).
The applicant applies for leave to appeal a decision of the Assessment Appeals Committee of the Saskatchewan Municipal Board on a question of law pursuant to s. 33.1 of the Municipal Board Act. The issues raised by the applicant relate to abnormal obsolescence for size and the refusal of the Assessor to apply abnormal obsolescence to the owner's property. The issues also relate to 15 other properties and as the issues are the same for each property they were decided by the Assessment Appeals Committee on one appeal. The Assessment Appeals Committee dismissed the appeals, finding the issue not to be a matter of the Assessor's Discretion but a matter of professional interpretation of data. The Committee found the Board of Revision did not err in its decision to dismiss the appeals and found the Board did not err on the issue of abnormal obsolescence for size. HELD: Leave to appeal was granted on two questions of law.  1) Did the Committee err in its interpretation and application of the Saskatchewan Assessment Manual by failing to find that economic obsolescence for size must be categorized on a MAF by MAF basis? 2) Did the Committee err by failing to find the Assessor should have used the comparable unit method to determine whether an adjustment for obsolescence for size should be applied to the applicant's property? 3) On the use of invalid sales leave was denied on the basis the question of the sale is a question of fact and in argument the applicant said for its purposes the impugned sale did not matter. 4) Leave to appeal was denied on the issue of the standard of proof that there was no error demonstrated.