Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd.

Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd.
Collection
Supreme Court Judgments
Date
2016-11-04
Neutral citation
2016 SCC 47
Report
[2016] 2 SCR 293
Case number
36403
Judges
McLachlin, Beverley; Abella, Rosalie Silberman; Cromwell, Thomas Albert; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard; Gascon, Clément; Côté, Suzanne; Brown, Russell
On appeal from
Alberta
Subjects
Administrative law
Municipal law
Notes
SCC Case Information: 36403
Decision Content
SUPREME COURT OF CANADA
Citation: Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, [2016] 2 S.C.R. 293
Appeal heard: March 23, 2016
Judgment rendered: November 4, 2016
Docket: 36403
Between:
City of Edmonton
Appellant
and
Edmonton East (Capilano) Shopping Centres Limited
(as represented by AEC International Inc.)
Respondent
- and -
Attorney General of British Columbia,
Assessment Review Board for the City of Edmonton and
British Columbia Assessment Authority
Interveners
Coram: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ.
Reasons for Judgment:
(paras. 1 to 62)
Joint Dissenting Reasons:
(paras. 63 to 125)
Karakatsanis J. (Abella, Cromwell, Wagner and Gascon JJ. concurring)
Côté and Brown JJ. (McLachlin C.J. and Moldaver J. concurring)
Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, [2016] 2 S.C.R. 293
City of Edmonton Appellant
v.
Edmonton East (Capilano) Shopping Centres Limited
(as represented by AEC International Inc.) Respondent
and
Attorney General of British Columbia,
Assessment Review Board for the City of Edmonton and
British Columbia Assessment Authority Interveners
Indexed as: Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd.
2016 SCC 47
File No.: 36403.
2016: March 23; 2016: November 4.
Present: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ.
on appeal from the court of appeal for alberta
Municipal law — Taxation — Property assessments — Assessment Review Board for City of Edmonton — Taxpayer filing complaint disputing municipal property assessment amount — Board increasing property assessment as requested in City’s response to complaint — Lower courts agreeing with taxpayer that Board cannot increase property assessment — Whether Board had power to increase assessment — Municipal Government Act, R.S.A. 2000, c. M‑26, s. 467.
Administrative law — Appeals — Standard of review — Boards and tribunals — Assessment Review Board for City of Edmonton — Taxpayer filing complaint disputing municipal property assessment amount — Board increasing property assessment as requested in City’s response to complaint — Standard of review applicable to Board’s decision to increase taxpayer’s property assessment — Whether Board’s decision reasonable — Municipal Government Act, R.S.A. 2000, c. M‑26, s. 470.
The taxpayer Company owns a shopping centre in Edmonton, Alberta. For the 2011 taxation year, the City of Edmonton assessed the value of the mall at approximately $31 million. The Company disputed this assessment by filing a complaint with the Assessment Review Board. The Company’s position was that the assessed value exceeded the market value of the mall and was inequitable when compared to the assessed value of other properties. It sought a reduction in the assessed value to approximately $22 million.
When reviewing the Company’s submissions and evidence, the City discovered what it determined was an error in its original assessment. The City requested that the Board increase the assessed value of the shopping centre to approximately $45 million. While the Company expressed concern about the City’s change in position, it did not dispute the Board’s power to increase the assessment in this case. Under s. 467(1) of the Municipal Government Act, after hearing a complaint, an assessment review board may “change” the assessment or “decide that no change is required.” The Board ultimately increased the assessment to approximately $41 million. A decision of an assessment review board may be appealed to the Court of Queen’s Bench, with permission, on a question of law or jurisdiction of sufficient importance to merit an appeal. On appeal to the Alberta Court of Queen’s Bench, the chambers judge set aside the Board’s decision and remitted the matter to the Board for a hearing de novo. This order was affirmed on appeal to the Alberta Court of Appeal. This Court must determine what the appropriate standard of review is for the Board’s implicit decision that it could increase the Company’s property assessment and determine if the Board’s decision withstands scrutiny on that standard.
Held (McLachlin C.J. and Moldaver, Côté and Brown JJ. dissenting): The appeal should be allowed, the decision of the Court of Appeal set aside and the Board’s decision reinstated.
Per Abella, Cromwell, Karakatsanis, Wagner and Gascon JJ.: The standard of review in this case is reasonableness. Unless the jurisprudence has already settled the applicable standard of review, the reviewing court should begin by considering whether the issue involves the interpretation by an administrative body of its own statute or statutes closely connected to its function. If so, the standard of review is presumed to be reasonableness. This presumption of deference on judicial review respects the principle of legislative supremacy and the choice made to delegate decision making to a tribunal, rather than the courts. A presumption of deference on judicial review also fosters access to justice to the extent the legislative choice to delegate a matter to a flexible and expert tribunal provides parties with a speedier and less expensive form of decision making.
In this case, the framework from Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, provides a clear answer. The substantive issue here — whether the Board had the power to increase the assessment — turns on the interpretation of s. 467(1) of the Act, the Board’s home statute. The issue does not fall within one of the four categories identified in Dunsmuir as calling for correctness review. Accordingly, the standard of review is presumed to be reasonableness.
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. Recognizing issues arising on statutory appeals as a new category to which the correctness standard applies would go against strong jurisprudence from this Court.
The presumption of reasonableness is grounded in the legislature’s choice to give a specialized tribunal responsibility for administering the statutory provisions, and the expertise of the tribunal in so doing. Expertise arises from the specialization of functions of administrative tribunals like the Board which have a habitual familiarity with the legislative scheme they administer. Expertise may also arise where legislation requires that members of a given tribunal possess certain qualifications. However, expertise is not a matter of the qualifications or experience of any particular tribunal member. Rather, expertise is something that inheres in a tribunal itself as an institution.
This Court has often applied a reasonableness standard on a statutory appeal from an administrative tribunal, even when the appeal clause contained a leave requirement and limited appeals to questions of law, or to questions of law or jurisdiction. In light of this strong line of jurisprudence — combined with the absence of unusual statutory language — there was no need for the Court of Appeal to engage in a long and detailed contextual analysis. Inevitably, the result would have been the same. The presumption of reasonableness is not rebutted here.
The contextual approach can generate uncertainty and endless litigation concerning the standard of review. As in British Columbia, legislatures can specify the applicable standard of review; unfortunately explicit legislative guidance is not common.
The Board’s decision to increase the Company’s property assessment was reasonable. Given that the Company did not dispute the Board’s power to increase the assessment in this case, it is not surprising the Board did not explain why it was of the view that it could increase the assessment. Accordingly, the Board’s decision should be reviewed in light of the reasons which could be offered in support of it. It was reasonable for the Board to interpret s. 467(1) of the Act to permit it to increase the Company’s property assessment at the City’s request. While s. 460(3) of the Act provides that only assessed persons and taxpayers may make complaints, the scheme of the Act does not require that municipalities be empowered to file a “complaint” against an assessment. The Act provides other mechanisms by which municipalities can change or seek changes to an assessment. The Board’s interpretation of s. 467(1) of the Act is consistent with the ordinary meaning of “change” in s. 467(1) and the overarching policy goal of the Act, to ensure assessments are correct, fair and equitable. The alternative would permit taxpayers to use the complaints process to prevent assessments made in error from being corrected, thereby frustrating the Act’s purpose.
Per McLachlin C.J. and Moldaver, Côté and Brown JJ. (dissenting): The appropriate standard of review of the Assessment Review Board’s decision is correctness. The legislature of Alberta created a municipal assessment complaints regime that allows certain questions squarely within the expertise of an assessment review board to be reviewed on a deferential standard through the ordinary mechanism of judicial review. The legislature, however, also designated certain questions of law and jurisdiction — for which standardized answers are necessary across the province — to be the subject of an appeal to the Court of Queen’s Bench. The statutory scheme and the Board’s lack of relative expertise in interpreting the law lead to the conclusion that the legislature intended that the Board’s decisions on such questions be reviewed on a correctness standard. As a result, even were the Board’s interpretation presumptively owed deference on the basis that the Board is interpreting its home statute, this presumption of deference has been rebutted by clear signals of legislative intent. Consistency in the understanding and application of these legal questions is necessary, and only courts can provide such consistency.
The existence of a statutory right of appeal can, in combination with other factors, lead to a conclusion that the proper standard of review is correctness. A statutory right of appeal, like a privative clause, is an important indicator of legislative intent and, depending on its wording, it may be at ease with judicial intervention. But a statutory right of appeal is not a new “category” of correctness review. The ostensibly contextual standard of review analysis should not be confined to deciding whether new categories have been established. An approach to the standard of review analysis that relies exclusively on categories and eschews any role for context risks introducing the vice of formalism into the law of judicial review. In every case, a court must determine what the appropriate standard of review is for this question decided by this decision maker. This is not to say that a full contextual standard of review analysis must be conducted in every single case. Where a standard of review analysis is performed and the proper standard of review is determined for a particular question decided by a particular decision maker, that standard of review should apply in the future to similar questions decided by that decision maker. Disregard for the contextual analysis would represent a significant departure from Dunsmuir and from this Court’s post‑Dunsmuir jurisprudence.
The question at issue here is not one which falls within the Board’s expertise. An administrative decision maker is not entitled to blanket deference in all matters simply because it is an expert in some matters. An administrative decision maker is entitled to deference on the basis of expertise only if the question before it falls within the scope of its expertise, whether specific or institutional. Expertise is a relative concept. It is not absolute. While the Board may have familiarity with the application of the assessment provisions of the Act, the legislature has recognized that the Board’s specialized expertise does not necessarily extend to general questions of law and jurisdiction. The Board’s decisions may, instead, be appealed on these questions of law and jurisdiction. The legislature created a tribunal with expertise in matters of valuation and assessment. In light of this lack of relative expertise on questions of law and jurisdiction, it cannot be maintained that a presumption applies that the legislature intended that the Board’s determinations on questions of law and jurisdiction be owed deference.
Applying the proper standard, the Board erred in increasing the Company’s property assessment in this case and the appeal should be dismissed. The Board’s decision to increase the assessed value based on the City’s submissions must be quashed because the Board considered information that it was statutorily prohibited from considering. Assessment review boards have jurisdiction only to adjudicate the issues that are raised in the assessed person’s complaint form. The Board in this case erred by hearing and partially accepting the City’s new and revised assessment based on an entirely new classification, one which was not the subject of the Company’s complaint. The word “change” in s. 467(1) of the Act should be given its ordinary and grammatical meaning. The Board is not precluded from ever increasing an assessment; however, the Board’s decision‑making authority in this case was limited to the specific matters that were raised in the Company’s complaint. The Board had no authority to inquire into the fairness and equity of the assessment generally and to consider or accept elements of the new assessment proposed by the City in increasing the assessment.
Cases Cited
By Karakatsanis J.
Applied: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; distinguished: Tervita Corp. v. Canada (Commissioner of Competition), 2015 SCC 3, [2015] 1 S.C.R. 161; approved: Edmonton (City) v. Army & Navy Department Stores Ltd., [2002] A.M.G.B.O. No. 126 (QL); referred to: Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29, [2016] 1 S.C.R. 720; Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, [2015] 2 S.C.R. 3; Canadian Artists’ Representation v. National Gallery of Canada, 2014 SCC 42, [2014] 2 S.C.R. 197; McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895; Canadian Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57, [2015] 3 S.C.R. 615; Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654; Smith v. Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160; Bell Canada v. Bell Aliant Regional Communications, 2009 SCC 40, [2009] 2 S.C.R. 764; Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633; Ontario (Energy Board) v. Ontario Power Generation Inc., 2015 SCC 44, [2015] 3 S.C.R. 147; ATCO Gas and Pipelines Ltd. v. Alberta (Utilities Commission), 2015 SCC 45, [2015] 3 S.C.R. 219; Dr. Q v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226; Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247; Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35, [2012] 2 S.C.R. 283; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339; National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324; Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; Canadian Natural Resources Ltd. v. Wood Buffalo (Regional Municipality), 2012 ABQB 177, 535 A.R. 281.
By Côté and Brown JJ. (dissenting)
Dr. Q v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226; C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539; Monsanto Canada Inc. v. Ontario (Superintendent of Financial Services), 2004 SCC 54, [2004] 3 S.C.R. 152; Osborne v. Rowlett (1880), 13 Ch. D. 774; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339; Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633; McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895; Smith v. Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160; Bell Canada v. Bell Aliant Regional Communications, 2009 SCC 40, [2009] 2 S.C.R. 764; Edmonton (City) v. Edmonton (City) Assessment Review Board, 2010 ABQB 634, 503 A.R. 144; Associated Developers Ltd. v. Edmonton (City), 2011 ABQB 592, 527 A.R. 287; Edmonton (City) v. Edmonton (Composite Assessment Review Board), 2012 ABQB 118, 534 A.R. 110; Habtenkiel v. Canada (Citizenship and Immigration), 2014 FCA 180, [2015] 3 F.C.R. 327; R. v. D.L.W., 2016 SCC 22, [2016] 1 S.C.R. 402; Townsend v. Kroppmanns, 2004 SCC 10, [2004] 1 S.C.R. 315; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748; National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324; Canada (Deputy Minister of National Revenue) v. Mattel Canada Inc., 2001 SCC 36, [2001] 2 S.C.R. 100; Moreau‑Bérubé v. New Brunswick (Judicial Council), 2002 SCC 11, [2002] 1 S.C.R. 249; Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35, [2012] 2 S.C.R. 283; United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316; Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654; Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471; Canadian Natural Resources Ltd. v. Wood Buffalo (Regional Municipality), 2012 ABQB 177, 535 A.R. 281; Prince Albert (City) v. 101027381 Saskatchewan Ltd., 2009 SKCA 59, 324 Sask. R. 313; 79912 Manitoba Ltd. v. Winnipeg City Assessor (1998), 131 Man. R. (2d) 264; Orange Properties Ltd. v. Winnipeg City Assessor (1996), 107 Man. R. (2d) 278; Harris v. Minister of National Revenue, [1965] 2 Ex. C.R. 653, aff’d [1966] S.C.R. 489; Canada v. Last, 2014 FCA 129, [2015] 3 F.C.R. 245; Edmonton ARB, Decision No. 0098 139/11, August 24, 2011; Edmonton ARB, Decision No. 0098 174/10, August 4, 2010; Canadian Natural Resources Ltd. v. Wood Buffalo (Regional Municipality), 2014 ABCA 195, 575 A.R. 362; Immeubles B.P. Ltée v. Ville d’Anjou, [1978] C.S. 422; Executive Director of Assessment (N.B.) v. Ganong Bros. Ltd., 2004 NBCA 46, 271 N.B.R. (2d) 43.
Statutes and Regulations Cited
Administrative Tribunals Act, S.B.C. 2004, c. 45, ss. 58, 59.
Assessment Act, R.S.B.C. 1996, c. 20, s. 32.
Assessment Act, R.S.N.S. 1989, c. 23, s. 62(2).
Assessment Act, R.S.O. 1990, c. A.31, s. 40.
Cities Act, S.S. 2002, c. C‑11.1, s. 197(3).
Competition Tribunal Act, R.S.C. 1985, c. 19 (2nd Supp .), s. 13(1) .
Copyright Act, R.S.C. 1985, c. C‑42 .
Income Tax Act, R.S.C. 1985, c. 1 (5th Supp .).
Matters Relating to Assessment and Taxation Regulation, Alta. Reg. 220/2004, ss. 4(1)(a), 15.
Matters Relating to Assessment Complaints Regulation, Alta. Reg. 310/2009, ss. 8(2), 9, 10(2), 15(1).
Municipal Assessment Act, C.C.S.M., c. M226, ss. 42, 43.
Municipal Government Act, R.S.A. 2000, c. M‑26, ss. 15, 23, 26, 30, 31, 43 to 45, 47, 47.1, 205, 207, 208, 285, 293(1), 299, 300, 305, 305.1, 308, 309(1)(c), 317 to 325, 324, 370, 381, 390, 409.3, 425.1, 436.23, 452, 453 to 457, 454, 460, 460.1(2), 465, 467, 470, 470.1(2), 476.1, 484.1, 486, 514 to 517, 527.1, 534, 570 to 580, 571, 708.02.
Authors Cited
Alberta. “2015 Alberta Assessment Quality Minister’s Guidelines” (online: www.municipalaffairs.alberta.ca/documents/as/2015_Assessment_Quality_Ministers_Guidelines.pdf).
Alberta. Legislative Assembly. Alberta Hansard, 2nd Sess., 27th Leg., April 21, 2009, p. 735.
Bilson, Beth. “The Expertise of Labour Arbitrators” (2005), 12 C.L.E.L.J. 33.
Breyer, Stephen. “Judicial Review of Questions of Law and Policy” (1986), 38 Admin. L. Rev. 363.
Brown, Donald J. M., and John M. Evans, with the assistance of David Fairlie. Judicial Review of Administrative Action in Canada. Toronto: Thomson Reuters, 2013 (loose‑leaf updated May 2016, release 1).
Daly, Paul. “Struggling Towards Coherence in Canadian Administrative Law? Recent Cases on Standard of Review and Reasonableness” (forthcoming, McGill L.J.).
Daly, Paul. “The Unfortunate Triumph of Form over Substance in Canadian Administrative Law” (2012), 50 Osgoode Hall L.J. 317.
Dyzenhaus, David. “The Politics of Deference: Judicial Review and Democracy”, in Michael Taggart, ed., The Province of Administrative Law. Oxford: Hart, 1997, 279.
Hart, H. L. A. The Concept of Law, 3rd ed. Oxford: Oxford University Press, 2012.
Mullan, David J. “Establishing the Standard of Review: The Struggle for Complexity?” (2004), 17 C.J.A.L.P. 59.
Sossin, Lorne. “Empty Ritual, Mechanical Exercise or the Discipline of Deference? Revisiting the Standard of Review in Administrative Law” (2003), 27 Adv. Q. 478.
APPEAL from a judgment of the Alberta Court of Appeal (Berger, Slatter and Rowbotham JJ.A.), 2015 ABCA 85, 643 W.A.C. 210, 599 A.R. 210, 12 Alta. L.R. (6th) 236, 80 Admin. L.R. (5th) 240, 382 D.L.R. (4th) 85, 34 M.P.L.R. (5th) 204, [2015] 5 W.W.R. 547, [2015] A.J. No. 217 (QL), 2015 CarswellAlta 324 (WL Can.), affirming a decision of Rooke A.C.J., 2013 ABQB 526, 570 A.R. 208, 14 M.P.L.R. (5th) 252, [2013] A.J. No. 979 (QL), 2013 CarswellAlta 1745 (WL Can.), which set aside the decision of the Assessment Review Board, No. 0098 56/11, August 2, 2011. Appeal allowed, McLachlin C.J. and Moldaver, Côté and Brown JJ. dissenting.
Cameron J. Ashmore and Tanya Boutin, for the appellant.
Gilbert J. Ludwig, Q.C., James B. Laycraft, Q.C., Guy Régimbald and Brian K. Dell, for the respondent.
Written submissions only by Katherine Webber, for the intervener the Attorney General of British Columbia.
Katharine L. Hurlburt, Q.C., for the intervener the Assessment Review Board for the City of Edmonton.
R. Bruce E. Hallsor and Colin G. Simkus, for the intervener the British Columbia Assessment Authority.
The judgment of Abella, Cromwell, Karakatsanis, Wagner and Gascon JJ. was delivered by
Karakatsanis J. —
I. Introduction
[1] Alberta residents may dispute their municipal property assessment before a local assessment review board. When one Edmonton taxpayer did so, the Assessment Review Board decided to increase the assessment the taxpayer had disputed. The taxpayer appealed, submitting that when a taxpayer disputes an assessment the Board lacks the statutory power to increase the assessment and may only lower or confirm it. The Alberta Court of Queen’s Bench agreed with the taxpayer, as did the Court of Appeal. The City of Edmonton now appeals to this Court.
[2] This appeal raises two issues: (1) What is the appropriate standard of review for the Board’s implicit decision that it could increase the assessment? (2) Does the decision withstand scrutiny on that standard?
[3] For the following reasons, I conclude that the standard of review for the Board’s decision is reasonableness and that it was reasonable for the Board to find it had the power to increase the assessment. Accordingly, I would allow the appeal and reinstate the decision of the Board.
II. Facts
[4] Edmonton East (Capilano) Shopping Centres Limited (the “Company”) owns the Capilano Shopping Centre in Edmonton, Alberta. For the 2011 taxation year, the City of Edmonton assessed the value of the mall as approximately $31 million.
[5] In March 2011, pursuant to s. 460 of the Municipal Government Act, R.S.A. 2000, c. M-26 (“MGA”), the Company disputed this assessment by filing a complaint with the Assessment Review Board for the City of Edmonton. The Company’s position was that the assessed value exceeded the market value of the mall and was inequitable when compared to the assessed value of other properties. It sought a reduction in the assessed value to approximately $22 million.
[6] When reviewing the Company’s submissions and evidence, the City discovered what it determined was an error in its original assessment. The City originally classified the mall as a “community centre” with the value of the rent from its anchor tenant, Wal-Mart, assessed at $3.50 per square foot. The City now said the mall should have been classified as a “power centre” with the value of the rent from Wal-Mart assessed at $11.50 per square foot. This change in position was based in large part on the City’s review of the assessed value of the rents from three other Wal-Marts in Edmonton. In June 2011, the City informed the Company that it would seek an increase from the Board. In its written submissions to the Board, the City requested that the Board increase the assessed value to approximately $45 million.
[7] While the Company expressed concern about the City’s change in position, it did not dispute the Board’s power to increase the assessment in this case.
[8] The Board ultimately increased the assessment to approximately $41 million. On appeal to the Alberta Court of Queen’s Bench, the chambers judge set aside the Board’s decision and remitted the matter to the Board for a hearing de novo. This order was affirmed on appeal to the Alberta Court of Appeal.
III. The Statutory Scheme and Provisions
[9] Alberta’s MGA regulates property assessments in the province. The scheme operates on an annual basis, with municipalities preparing assessments each year (s. 285). Property assessors are subject to an overarching duty to prepare assessments “in a fair and equitable manner” (s. 293(1)).
[10] The MGA permits any “assessed person” or “taxpayer” to contest a municipal property assessment before an assessment review board (s. 460). After hearing a complaint, an assessment review board may “change” the assessment or “decide that no change is required” (s. 467(1)). “An assessment review board must not alter any assessment that is fair and equitable, taking into consideration . . . the valuation and other standards set out in the regulations” (s. 467(3)). The valuation standard for most property is its “market value” (Matters Relating to Assessment and Taxation Regulation, Alta. Reg. 220/2004, s. 4(1)(a)).
[11] A decision of an assessment review board may be appealed to the Court of Queen’s Bench, with permission, on “a question of law or jurisdiction of sufficient importance to merit an appeal” (s. 470(1) and (5) MGA). Where the appeal is granted, the matter is referred back to the assessment review board “and the board must rehear the matter and deal with it in accordance with the opinion of or any direction given by the Court on the question of law or the question of jurisdiction” (s. 470.1(2)).
[12] In some circumstances, assessments may also be changed outside the complaints process. “If it is discovered that there is an error, omission or misdescription in any of the information shown on the assessment roll . . . the assessor may correct the assessment roll for the current year only” (s. 305(1) MGA). However, if a complaint has been made about a property, “the assessor must not correct or change the assessment roll in respect of that property” until an assessment review board has made a decision or the complaint has been withdrawn (s. 305(5)).
IV. Decisions Below
A. Assessment Review Board, No. 0098 56/11, August 2, 2011
[13] The Board noted the Company’s position that the City should not be able to effectively submit a new assessment based on a power centre classification. The Board did not address this argument except to say “the Board decided to continue the merit hearing and place appropriate weight on the evidence presented”. Implicit in the Board’s analysis was a decision that it had the authority to increase the assessment should it so choose.
[14] On the merits of the assessment, the Board agreed in part with the City: it found that the mall was “something more” than a community centre, though not quite a power centre. It assessed the value of the rent from Wal-Mart at $10.50 per square foot, reasoning in part that it would be inequitable for the assessed value to be as low as $3.50 per square foot when other nearby Wal-Marts had been assessed at $10.50 or $11.50 per square foot. The Board increased the overall assessment to approximately $41 million.
B. Court of Queen’s Bench, 2013 ABQB 526, 570 A.R. 208 — Rooke A.C.J.
[15] The Court of Queen’s Bench granted permission to appeal, including on the issue of whether the Board “was entitled to proceed on a new assessment” (para. 14, quoting 2012 ABQB 445, at para. 60 (CanLII)).
[16] Rooke A.C.J. stated that the issue on appeal was a true question of jurisdiction of the kind discussed in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, and the standard of review was correctness.
[17] Turning to the substantive issue, the chambers judge concluded that when a taxpayer complains about an assessment, the municipality must defend the assessed amount as correct and cannot ask the Board to change the assessment. Noting that, under the MGA, only assessed persons and taxpayers may complain about an assessment (s. 460(3)), the chambers judge reasoned that the City had tried to do indirectly what it cannot do directly. He concluded the Board lacked jurisdiction to increase the assessment at the City’s request, set aside the Board’s decision and remitted the matter to the Board for a hearing de novo.
C. Court of Appeal, 2015 ABCA 85, 599 A.R. 210 — Slatter, Berger and Rowbotham JJ.A.
[18] Writing for the court, Slatter J.A. agreed that the standard of review was correctness. While he did not agree that the issue on appeal was a true question of jurisdiction, he concluded that the decisions of a tribunal subject to a statutory right of appeal (or a right to apply for leave to appeal), rather than ordinary judicial review, should be reviewed on the correctness standard.
[19] On the substantive issue, the Court of Appeal concluded that s. 467(1) does not empower the Board to increase an assessment at the City’s request. The City did not have the right to seek an increase: it was not empowered to make a complaint under s. 460(3). The court agreed with the chambers judge that the City’s power to correct errors (s. 305) did not apply here, because there was no error; the City simply changed its mind. The Court of Appeal concluded that the Board erred in increasing the assessment and dismissed the City’s appeal.
V. Analysis
A. Standard of Review
[20] In this case, Slatter J.A. said: “The day may come when it is possible to write a judgment like this without a lengthy discussion of the standard of review” (para. 11). That day has not come, but it may be approaching. In Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29, [2016] 1 S.C.R. 720, my colleague Abella J. expressed an interest in revisiting the standard of review framework. The majority appreciated Justice Abella’s efforts to stimulate a discussion on how to clarify or simplify our standard of review jurisprudence to better promote certainty and predictability. In my view, the principles in Dunsmuir should provide the foundation for any future direction. However, any recalibration of our jurisprudence should await full submissions. This appeal was argued on the basis of our current jurisprudence and I proceed accordingly.
[21] The Dunsmuir framework balances two important competing principles: legislative supremacy, which requires the courts to respect the choice of Parliament or a legislature to assign responsibility for a given decision to an administrative body; and the rule of law, which requires that the courts have the last word on whether an administrative body has acted within the scope of its lawful authority (paras. 27-31).
(1) Presumption of Reasonableness
[22] Unless the jurisprudence has already settled the applicable standard of review (Dunsmuir, at para. 62), the reviewing court should begin by considering whether the issue involves the interpretation by an administrative body of its own statute or statutes closely connected to its function. If so, the standard of review is presumed to be reasonableness (Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, [2015] 2 S.C.R. 3, at para. 46). This presumption of deference on judicial review respects the principle of legislative supremacy and the choice made to delegate decision making to a tribunal, rather than the courts. A presumption of deference on judicial review also fosters access to justice to the extent the legislative choice to delegate a matter to a flexible and expert tribunal provides parties with a speedier and less expensive form of decision making.
[23] The Dunsmuir framework provides a clear answer in this case. The substantive issue here — whether the Board had the power to increase the assessment — turns on the interpretation of s. 467(1) of the MGA, the Board’s home statute. The standard of review is presumed to be reasonableness.
(2) Categories That Rebut the Presumption of Reasonableness
[24] The four categories of issues identified in Dunsmuir which call for correctness are constitutional questions regarding the division of powers, issues “both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise”, “true questions of jurisdiction or vires”, and issues “regarding the jurisdictional lines between two or more competing specialized tribunals” (paras. 58-61). When the issue falls within a category, the presumption of reasonableness is rebutted, the standard of review is correctness and no further analysis is required (Canadian Artists’ Representation v. National Gallery of Canada, 2014 SCC 42, [2014] 2 S.C.R. 197, at para. 13; McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895, at para. 22).
(a) Is the Issue on Appeal a True Question of Jurisdiction?
[25] The chambers judge found, and the Company submits, that whether the Board had the power to increase the assessment is a true question of jurisdiction reviewable on correctness. The Court of Appeal did not agree that this issue was a true question of jurisdiction.
[26] This category is “narrow” and these questions, assuming they indeed exist, are rare (Canadian Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57, [2015] 3 S.C.R. 615, at para. 39; Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654, at paras. 33-34). It is clear here that the Board may hear a complaint about a municipal assessment. The issue is simply one of interpreting the Board’s home statute in the course of carrying out its mandate of hearing and deciding assessment complaints. No true question of jurisdiction arises.
(b) Is a Statutory Right of Appeal a New Category of Correctness?
[27] The Court of Appeal concluded that when the decisions of a tribunal are subject to a statutory right of appeal (or a right to apply for leave to appeal), rather than ordinary judicial review, the standard of review on such appeals is correctness. It determined that a statutory appeal should be recognized as “an addition to or a variation of” the list of correctness categories enumerated in Dunsmuir (Court of Appeal reasons, at para. 24). Slatter J.A. reasoned that the existence of a statutory right of appeal is a strong indication that the legislature intended the courts to show less deference than they would in an ordinary judicial review.
[28] I disagree. In my view, recognizing issues arising on statutory appeals as a new category to which the correctness standard applies — as the Court of Appeal did in this case — would go against strong jurisprudence from this Court.
[29] At least six recent decisions of this Court have applied a reasonableness standard on a statutory appeal from a decision of an administrative tribunal (McLean; Smith v. Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160; Bell Canada v. Bell Aliant Regional Communications, 2009 SCC 40, [2009] 2 S.C.R. 764; Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633; Ontario (Energy Board) v. Ontario Power Generation Inc., 2015 SCC 44, [2015] 3 S.C.R. 147; ATCO Gas and Pipelines Ltd. v. Alberta (Utilities Commission), 2015 SCC 45, [2015] 3 S.C.R. 219).
[30] In Saguenay, this Court confirmed that whenever a court reviews a decision of an administrative tribunal, the standard of review “must be determined on the basis of administrative law principles . . . regardless of whether the review is conducted in the context of an application for judicial review or of a statutory appeal” (para. 38, per Gascon J.; see also Dr. Q v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226, at paras. 17, 21, 27 and 36; Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247, at paras. 2 and 21).
[31] The Court of Appeal relied on this Court’s decision in Tervita Corp. v. Canada (Commissioner of Competition), 2015 SCC 3, [2015] 1 S.C.R. 161, where the statutory appeal clause was referred to when finding the standard of review was correctness (para. 36). However, the Court in Tervita relied upon the unique statutory language of that particular appeal clause: a decision of the tribunal was appealable “as if it were a judgment of the Federal Court” (Competition Tribunal Act, R.S.C. 1985, c. 19 (2nd Supp .), s. 13(1) ). Obviously, judgments of the Federal Court do not benefit from deference on appeal (except on questions of fact, for entirely different reasons). Tervita does not stand for the proposition that all issues arising on all statutory appeals are reviewable on the correctness standard.
(3) Contextual Analysis
[32] The Court of Appeal also conducted a review of the relevant contextual factors to support the conclusion that the standard of review is correctness. The presumption of reasonableness may be rebutted if the context indicates the legislature intended the standard of review to be correctness (Saguenay, at para. 46; Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35, [2012] 2 S.C.R. 283, at para. 16).
[33] The presumption of reasonableness is grounded in the legislature’s choice to give a specialized tribunal responsibility for administering the statutory provisions, and the expertise of the tribunal in so doing. Expertise arises from the specialization of functions of administrative tribunals like the Board which have a habitual familiarity with the legislative scheme they administer: “. . . in many instances, those working day to day in the implementation of frequently complex administrative schemes have or will develop a considerable degree of expertise or field sensitivity to the imperatives and nuances of the legislative regime” (Dunsmuir, at para. 49, quoting D. J. Mullan, “Establishing the Standard of Review: The Struggle for Complexity?” (2004), 17 C.J.A.L.P. 59, at p. 93; see also Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at para. 25). Expertise may also arise where legislation requires that members of a given tribunal possess certain qualifications. However, as with judges, expertise is not a matter of the qualifications or e