Written by Kelsey Meyer, Alexis Teasdale, Andrea Stempien and Stirling Wood
In a recent decision, Edmonton (City of) v Ten 201 Jasper Avenue Ltd, 2020 ABCA 60, the Alberta Court of Appeal confirmed that a municipality must disclose all relevant information the municipality considered in preparing a property assessment when an assessed person requests it. Where the information is not provided to the assessed person in a complete and timely manner, the municipality cannot rely upon the late or undisclosed material at an appeal of the property assessment.
Three commercial property owners in downtown Edmonton challenged their annual property tax assessments (the "Assessments") by way of application to the Assessment Review Board (the "ARB"). The owners applied under section 299(1) of the Municipal Government Act (MGA) for disclosure of the information which the City of Edmonton (the "City") used in its calculation of the Assessments, including comparator information regarding the calculation of property assessments for similar properties owned by third parties (the "Request"). The City provided some, but not all of the information requested.
Fourteen days before the hearing before the ARB, the City provided additional disclosure to the owners in accordance with section 8(2) of the Matters Relating to Assessment Complaints Regulation (MRAC), which requires the City to disclose the documentary evidence and any written argument that it intends to present at the hearing. The City's disclosure contained the information requested by the owners, but not previously disclosed by the City, in connection with the Request (the "Late Disclosure").
The owners argued that the City should not be allowed to rely on the Late Disclosure given that the City did not provide the Late Disclosure in its response to the Request. The ARB accepted the owners' argument citing section 9(4) of the MRAC, which says that a composite review board must not hear any evidence from a municipality relating to information which was requested by a complainant under section 299 of the MGA, but not provided to the complainant.
The City applied for and was granted permission to appeal, pursuant to section 470 of the MGA as it then existed. On March 22, 2018, the Court of Queen's Bench heard the City's appeal, in which the City argued that the scope of section 299(1) is not broad enough to include third-party information, information about other properties, or the information used to assess other properties. The City argued that by subsequently providing this information to the owners, they had properly disclosed all relevant material. The Court of Queen's Bench agreed with the City, finding that the ARB's interpretation of section 299(1) was unreasonable, and remitting the case back to the ARB, which would be allowed to rely on the Late Disclosure to support the Assessments. The owners appealed the decision to the Alberta Court of Appeal, where the Court was asked to answer two questions:
- What standard of review should have been applied to the Board's interpretation of section 299(1)?
- Was the Board's interpretation of section 299(1) correct?
- The standard of review to be applied is correctness when a court is asked to review the merits of an administrative decision by way of statutory appeal and the issue is one of statutory interpretation. Because section 470 of the MGA (as it then existed) contained a statutory appeal mechanism, the court should infer this to mean that appellate standards should apply when a court reviews the ARB's decision. For more information on standards of review, and the impact of the recent Supreme Court of Canada decision: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, see the Bennett Jones blog, Supreme Court of Canada Reforms Judicial Review.
- The ARB's interpretation of section 299(1) was correct. If an assessed person makes a request for additional disclosure under section 299(1), the municipality is required to disclose all relevant information, including third-party information, which is relevant to the property assessment. The Court reasoned that "the taxpayer cannot make good decisions about whether to appeal a tax assessment if not given all the relevant information used to prepare the assessment." If a municipality fails to provide full and timely disclosure, the municipality will not be permitted to rely on the late-disclosed material to support the assessed property value in response to a complaint by the assessed person before an assessment review board.
The Alberta Legislature has since amended section 470 of the MGA, removing the statutory appeal mechanism, and replacing it with a judicial review remedy. For this reason, a subsequent case, involving section 470 as it currently exists, will require a closer look at Vavilov to determine the appropriate standard of review to be applied by the relevant review board.