Administrative law – Decisions of administrative tribunals – Municipal councils – Municipalities – By-laws – Change of by-laws – Utility services – Cost sharing – Levies and taxies – Judicial review – Compliance with legislation
Andrex Developments (1985) Ltd. v. Colwood (City),  B.C.J. No. 983, British Columbia Court of Appeal, May 20, 2009, L.S.G. Finch C.J.B.C., J.E. Hall and M.E. Saunders JJ.A.
The Respondent Company owned a parcel of land in the Appellant City. The City was authorized, under the Municipal Act, to finance and construct services if there was support for the project and the beneficiaries of the project were prepared to bear some of the cost. The Company submitted a petition for a sewer service and the petition included a proposal as to the method by which the Company would bear a portion of the cost. The proposal included the following statement about how the Company was prepared to contribute to the cost “The costs shall be collected by way of an annual charge against the properties, based on the assessed value of land only…”. In 1997, the City passed a bylaw that contained this language about the cost recovery method.
In 1998, the City reconsidered the cost recovery method in the 1997 bylaw and required that the Company submit an amended petition. The Company complied and submitted a petition proposing “…the City may… levy and impose charges as provided by section 646(4) of the Municipal Act, including but not limited to, an annual charge against the assessed value of the land only…”. The City passed a bylaw incorporating similar language.
The sewer was subsequently constructed and the Company was charged, in 2003, 2004, and 2005 according to the assessed value of the land. On November 14, 2006, the City adopted bylaws to implement a parcel tax instead of a tax under a property value tax model. The Company brought a petition for judicial review in the B.C. Supreme Court. The Court found that the Municipal Act required the City to obtain the assent of the Company before changing the method by which it recovered the cost of the sewer project. The Court did not accept that the 1999 petition and bylaw was sufficient to satisfy the requirement that the Company assent. On appeal, the City contended that the judge erred in this conclusion.
The Court of Appeal found that section 646(4)(a)-(c) of the Municipal Act empowered the City to recover construction costs by a property value tax, a parcel tax or fees. The Company’s amended petition referred to section 646(4) and did not refer to a specific subsection. Therefore, the City was not limited in which form the tax would take. The 1999 bylaw authorizes the work to be done along with an authorization for cost recovery. Once the City attempted to recover the cost, it was then required to specify which method of taxation it was going to use and it did so.
The Court of Appeal concluded that fresh assent was not required before the City chose a different method of taxation. The Court of Appeal also concluded that the 1999 bylaw permitted the parcel tax recovery method. The Court of Appeal therefore allowed the appeal.
Finally, the Company argued that the content of the impugned 1999 bylaw did not authorize the creation of a parcel tax roll. The Court of Appeal remitted this issue back to the Supreme Court for consideration.
This case was digested by Scott J. Marcinkow of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at firstname.lastname@example.org or review his biography at http://www.harpergrey.com.
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