The Supreme Court of Canada confirmed that decisions of a tribunal which are subject to a statutory right of appeal are not a new category of correctness, and should not be added to the list of correctness categories enumerated in Dunsmuir.
Administrative law – Assessment Review Board – Compliance with legislation – Correctness – Decisions of administrative tribunals – Errors – Judicial Review – Jurisdiction – Municipalities – Property Assessment – Reasonableness simpliciter – Standard of Review
Edmonton (City) v. Edmonton East ( Capilano) Shopping Centres Ltd.,  S.C.J. No. 47,2016 SCC 47, Supreme Court of Canada, November 4, 2016, B. McLachlin C.J. and R.S. Abella, T.A. Cromwell, M.J. Moldaver, A. Karakatsanis, R. Wagner, C. Gascon, S. Côté and R. Brown JJ.
In Alberta, residents can dispute their municipal property assessments before a local assessment review board. In this case, a company that owned a shopping centre in Edmonton filed a complaint with the board disputing the City of Edmonton’s assessment of its property at $31 million. The company thought it should be valued at a lesser amount. When reviewing the matter, the City realized it had made an error in its original assessment and requested that the board increase the assessed value to $45 million. The company expressed concern about this change in position but did not dispute the board’s power to increase the assessment. The board decided to increase the assessment to $41 million. Section 467(1) of the Municipal Government Act (“MGA“), which regulates property assessments in Alberta, states that after hearing a complaint, an assessment review board may change the assessment or decide that no change is required. The MGA also contains a statutory right of appeal which provides that a decision of the review board may be appealed to the Court of Queen’s Bench (“QB”) on a question of law or jurisdiction of sufficient importance to merit an appeal.
The company appealed the review board’s decision to increase the assessment. The Court of QB stated the issue on appeal was a true question of jurisdiction of the kind discussed in Dunsmuir, and the standard of review was therefore correctness. The Court of QB concluded the board lacked jurisdiction to increase the assessment at the City’s request, and set aside the board’s decision remitting the matter back to the board for a hearing de novo. On appeal, the Court of Appeal agreed the standard of review was correctness. The Court did not agree the issue on appeal was a true question of jurisdiction, but concluded that decisions of a tribunal subject to a statutory right of appeal, rather than ordinary judicial review, should be reviewed on the correctness standard. On the substantive issue, the court concluded section 467(1) does not empower the board to increase an assessment at the City’s request, and held the board erred in doing so.
The Supreme Court of Canada (“SCC”) allowed the appeal and reinstated the board’s decision. The SCC explained the substantive issue in the case—whether the board had the power to increase the assessment—turned on the interpretation of section 467(1) of the MGA, the board’s home statute. As the issue did not fall within one of the four categories identified in Dunsmuir as calling for the correctness standard, the standard of review was presumed to be reasonableness. The presumption of reasonableness was not rebutted in this case. The SCC clarified that a statutory right of appeal is not a new category of correctness and should not be added to the list of correctness categories enumerated in Dunsmuir. On the substantive issue, the SCC concluded it was reasonable for the board to interpret section 467(1) to permit it to increase the assessment at the City’s request.
This case was digested by Kara L. Hill of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact her directly at firstname.lastname@example.org or review her biography at http://www.harpergrey.com.
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