Document

Canadian Property Tax Association, Inc.
Association canadienne de taxe foncière, Inc.
Volume No. 31
Issue: January/February 2011
Editor:
Brian K. Dell
Co-Editor: J. Bradford Nixon
EXECUTIVE COMMENT
Submitted by: Brad Nixon,
CPTA VP Administration, Toronto, ON
The CPTA is a National non-profit organization
incorporated under the Canada Corporations
Act. It operates as a single corporation and the
financial reporting is consolidated nationally.
The Chapters are not independent entities free
from the oversight of the National Board. Each
Chapter
prepares
income
and
expense
statements for reporting to the National
organization. Interestingly enough, three of the
four Chapters reported a modest deficit for 2010
- only the Quebec Chapter had a very modest
surplus. Similarly, the offices of the National
organization have reported an annual average
modest surplus of approximately $3,200 in its
operations over the past twenty years with ups
and downs along the way during this period. The
primary tasks of the National Office (but by no
means the only tasks) are the operation of the
workshop and provision of membership
services. The financial affairs of the Chapters
and the National are overseen by the National
Treasurer and incorporated into the annual
audited financial statement of the CPTA.
The financial relationship between the National Board
of Directors of the CPTA and the local Chapters is not
unlike the relationship between the two as described
in the Chapter Guidelines with respect to briefs. A
brief is defined as “very simply, a formal, written
document which purports to express the views of the
Association and goes out over the signature of any
Officer of the Association or Chapter”. The Chapter
Guidelines contain explicit requirements with respect
to the submission of briefs to governmental
authorities and require the approval of the National
Board of Directors.
— Index —
Executive Comment ............................ 1/2
British Columbia
Chapter Update .................................... 2/3
BC Assessment Legal Case .................. 3
BC Assessment Update ...................... 3/4
Written Hearings before BC’s PAAB . 4/5
Prehearing Document Disclosure
In British Columbia........................... 5/8
Western
Chapter Update ....................................... 9
MGB’s Decision Regarding
The Banff Springs Hotel ................ 9/10
Ontario
Chapter Update ................................... 10
Who Owns an Appeal? ...................... 11
Golf Courses .................................. 11/12
Notice to Ontario Members ............... 12
Québec
Chapter Update ................................ 13/14
Judicial Consistency ............................ 14
Article 65 MT (English) ....................... 14/15
Article 65 LFM (French) ..................... 15/17
Problèmes en
Évaluation Municipale (French) .......... 17
Problems with
Municipal Assessors (English) ........... 18
Western Chapter Seminar ................... 19
National Nominations Committee ....... 20
2011 National Workshop................. 20/22
Future Chapter Meetings & Events..... 23
(continued on page 2)
Published by: Canadian Property Tax Association, Inc. / Association canadienne de taxe foncière, Inc.
Page
6 Lansing Square, Suite 225, Toronto, ON M2J
1T5 1 Tel: (416) 493-3276 Fax: (416) 493-3905
[email protected] www.cpta.org
I encourage each Chapter Executive and
members to make a quick review of the Chapter
Guidelines if you are not familiar with them. It is
important that we, as a National organization,
maintain a consistent approach to the manner in
which the CPTA presents all of us to
governmental authorities who have decisionmaking authority over matters of very real
concern to us: ie. municipal assessment and
property tax policy, and legislation.
The success of the CPTA (now in its 45th year), is
due to its continuing professionalism in
presentation and accountability to members.
Let’s look to another 45 years of such success.
it is more then worth it
WELCOME TO THESE NEW MEMBERS
Greg Abbott
DMA Canada Ltd.
- WE
Lynette Featherstone Cenovus Energy Inc.
- WE
J. David Houston
Crease Harman & Co.
- BC
Ewa Kata
DMA Canada Ltd.
- ON
Peter W. Klassen
Crease Harman & Co.
- BC
Janice Olivier
ATCO Gas
- WE
Brad Stephen
DMA Canada Ltd.
- ON
Deb Stott
City of Red Deer
- WE
Danielle Tummon
AEC International
- ON
Heather Whynot
Canadian Natural
Resources Ltd.
- WE
BC CHAPTER
UPDATE
Submitted by Chapter Chair Peter Austin,
Austin Real Estate Consultants, Vancouver, B.C.
ANNUAL LEGAL PANEL
The Legal Panel was held on January 11th, 2011
to discuss the latest cases, and was chaired by
Cheryl Vickers. Our thanks to John McLachlan,
Lex Pacifica Law Corporation, Jim Fraser,
Lawson Lundell, and Ludmila Herbst, Farris,
Vaughan Wills & Murphy, who gave us their
opinion on:
•
•
•
•
The new revisions to the Assessment Act
regarding the assessment of vacant land.
The Allard case, which concerns procedural
aspects of hearings, whether there is a right
to cross examination, a written or oral
hearing.
Musqueam Indian Band case that revolved
around whether there was exemption for the
Band under certain prescribed circumstances.
Catalyst who had been granted a right to
appeal to the Supreme Court of Canada.
2011 APPEALS
Appeal Deadline in BC to the Property
Assessment Review Panel was January 31st,
2011. For those properties that were appealed, if
no resolution is obtained an appeal to the
Property Assessment Appeal Board can be made
by April 30th, 2011.
GOVERNMENT LIAISON
It is the goal of the Chapter Executive to meet with
the Ministry to discuss issues of significance to the
chapter on an annual basis, After the retirement of
Dale Wall, the long standing Deputy in charge of
assessments, the meeting indicated to take place
in December, was postponed to February.
David Nishi Beckingham and Peter Austin met with
Grant Main, the new deputy and Rob Fraser,
Executive Director, Property Assessment Services.
Issues as laid out in the November/December
Update were presented. The general response
was that the government was aware of all these
issues, but other than the matter concerning
Industrial Property, none were of priority. Due to
the Liberal party leadership elections they did not
envision much happening till the Fall.
It was suggested that we meet with both the
minister responsible for Assessment and the
Finance Minister as well as the tax policy
committee, as many of our issues would affect tax
policy that may be in place for other reasons.
The Industrial “think tank” has been unable to
develop a consensus on the issues at hand and
plan further meetings.
CHANGES AT THE APPEAL BOARD
The Property Assessment Appeal Board is run by
3 people in BC, The chair, Cheryl Vickers and two
Vice chairs, Simmi Sandhu and Rob Fraser.
Page 2
Among other responsibilities they undertake
appeal management and mediations and have
reduced the appeal backlog substantially over the
last few years.
In December, it was announced that the contract
of Rob Fraser, a long standing member, would not
be renewed at February 1st. The consequences, in
the Chapter Executive’s opinion would be dire as
this would place significant pressure on the
system until a replacement could be found, trained
and brought up to speed, causing a backlog of
cases and other potential problems. The Executive
felt it was prudent in the interests of maintaining
the standards at our PAAB to communicate with
the government to see how the issue could be
resolved. To date there has been no short term
solution put in place.
ROB FRASER RETIREMENT FUNCTION
The turnout for this event, 70 attendees, was
of the best that the industry has seen.
Assessment, PAAB members, lawyers,
payers and their representatives mingled
several hours to bid Rob farewell.
one
BC
tax
for
If only every CPTA event could be as well
attended. The Executive will need to think of a
good theme to attract a similar sized group for
their next event.
GOVERNMENT COMPUTERS CRASH
Hard to believe the computers went down on
January 31st, the appeal deadline day. If you filed
February 1st, due to the computer glitch, that may
be cause for your appeal to be allowed, even
though it was filed late.
taxable roll total value of $841 billion. A total of
1,902,875 properties were valued for the 2011
roll, an increase of 19,206 folios – or one per cent
- compared to 1,883,669 properties valued on the
2010 roll. More details are available at
www.bcassessment.bc
BC ASSESSMENT SOCIAL MEDIA SUCCESS
In an effort to continually improve customer
service, expand our reach of communications,
and better connect with our clients, BC
Assessment has fully embraced social media as a
crucial new component of our 2011 roll process.
Within a matter of days, our ’Twitter’ account
gained over a hundred followers and our
‘YouTube’ channel has received over 40,000
views. Feedback both externally and internally
has been very positive. We have put together a
keen Online Communications Strategy team with
imminent plans to launch a Facebook page as
well as pursuing other ways of increasing our
profile and relevance within a 21st century
business environment.
BC ASSESSMENT WELCOMES NEW
VP OF HUMAN RESOURCES
BC Assessment is pleased to welcome John
Madden as our new Vice President of Human
Resources. John has an extensive human
resources background from both the public and
private sectors, most recently as Vice President of
Human Resources and Public Safety at TransLink
in Vancouver. Prior to that, he led Human
Resources and Corporate Law at the Insurance
Corporation of BC (ICBC). A graduate of the
University of British Columbia, John began his
career at Canadian Airlines where he played key
roles in a number of mergers and restructurings
over nearly 20 years.
BC ASSESSMENT UPDATE
BC ASSESSMENT LEGAL
CASE UPDATE
Submitted by: Tim Morrison, Communications
Coordinator,BC Assessment, Victoria BC
2011 ASSESSMENT ROLL
MARKS A MILESTONE
The 2011 Assessment Roll was announced in
January with 2011 marking a milestone year for
BC Assessment. For the first time in British
Columbia’s history, the value of all real estate on
the annual provincial assessment roll has
surpassed $1 trillion. The sum amount is
$1,043,127,129,141, an increase of eight per cent
over the 2010 roll total value of $970 billion. The
taxable value of the 2011 Assessment Roll is
$908 billion, up eight per cent over the 2010
Submitted by: Meredith Parkes, Legal Counsel,
BC Assessment, Victoria, BC
On January 21, 2011, the BC Court of Appeal
confirmed that it is an error of law to conclude an
assessed value for a property that is lower than
the value of the property in its current use:
Assessor of Area 10 – North Fraser Region v.
Sherkat, 2011 BCCA 16, Stated Case 531. The
original appeal to the Property Assessment Appeal
Board concerned the 2008 assessment of 3 light
Page 3
industrial properties in New Westminster used for
automobile sales and service. The owner alleged
the assessed values were too high and did not
reflect the cost of contamination and remediation.
In 2009, the Board found the highest and best use
of the properties to be redevelopment, but
determined a value based on a lower FSR than
that employed by the Assessor. The Board
allowed a reduction in the value of 2 of the
properties to account for the cost of undertaking
an environmental study. The Board found that the
property located at 221-12th Street (the “Subject
Property”) was contaminated and allowed a
significant deduction from the value. The Board
relied on the Appellant’s evidence which was
comprised of a 1997 environmental assessment
and 2 remediation estimates prepared in 2008.
The Board concluded a value for the Subject
Property that was less than its value in its current
use. The Assessor appealed.
The Assessor argued that the Board erred in law
by valuing the Subject Property at a value less
than the value in its highest and best use. If
redevelopment was no longer the highest and
best use because of the cost of remediation, the
Board should have concluded that the highest
and best use was its current use and valued it
accordingly. The Assessor also took the position
that the Board erred in finding that there was no
evidence to time adjusted sales to support the
Assessor’s value of $25 per square foot buildable
for the properties.
The BC Supreme Court concluded that there was
no evidence before the Board regarding the
current use of the Subject Property and so there
was no error in the Board valuing it as it had. The
Court also found that there was no evidence of
time adjusted sales. The Assessor asked the
Court to reconsider its decision, but the Court
affirmed its earlier finding that the Board had not
erred. The Assessor sought and was granted
leave to appeal to the BC Court of Appeal.
The Court of Appeal found that the Chambers
Judge erred by concluding a value for the Subject
Property that was less than the value of the
property in its current use and held that the
Chambers Judge exceeded his jurisdiction by
weighing and considering the sufficiency of
evidence before the Board. Although there was
minimal evidence of the Subject Property’s
current use value, there was some evidence
before the Board of that value. The sufficiency of
that evidence was a matter for the Board. The
Court of Appeal also held that the Board erred in
finding there was no evidence of time adjusted
sales before it, but went on to state that this error
did not amount to an error of law. The question of
valuation of the Subject Property was remitted to
the Board and the appeal was dismissed on the
question of evidence of time adjusted sales.
WRITTEN HEARINGS BEFORE
BC’S PROPERTY ASSESSMENT
APPEAL BOARD
Submitted by: Ludmila B. Herbst,
Farris, Vaughan, Wills & Murphy LLP,
Vancouver, BC
The BC Court of Appeal recently considered
whether the Property Assessment Appeal Board
could hear an appeal purely by means of written
submissions. The Court found that the Board
could do so, although this may not be so in all
cases: whether or not a purely written process is
appropriate in any given appeal depends on the
circumstances of that case (Allard v. Assessor of
Area #10 - North Fraser Region, 2010 BCCA 437).
In Allard, the appellants in a residential appeal
requested an oral hearing in order to crossexamine the appraiser who had prepared a report
for the Assessor and to present evidence
themselves. However, at an Appeal Management
Conference, the Chair of the Board scheduled the
appeal to be heard by written submissions, noting
that the issues on appeal were not unique or
complex, and that the appellants’ ability to
communicate in writing was not of concern. The
appellants did not later renew their request for an
oral hearing with the Board member hearing the
appeal. The appellants’ failure to do so satisfied
at least one of the judges sitting on the Court of
Appeal’s three-judge panel (Garson J.A.) that
they had not been denied a fair process.
(Another of the judges – Rowles J.A. – did not
consider this factor to be determinative, and the
third of the judges – Saunders J.A. – concurred
with the reasoning of both her colleagues.)
At the Court of Appeal, the appellants argued in
part that s. 55(1) of BC’s Assessment Act,
R.S.B.C. 1996, c. 20 (which provides that “[i]n a
proceeding, the board may hold any combination
Page 4
of written, electronic and oral hearings”) authorizes
the Board to hold a written hearing only if held in
combination with another form of hearing, either
electronic or oral.
The Court held that the
statutory language did not require a combination
of forms of hearing in any particular case.
However, while the Assessment Act does not
dictate a particular form of hearing (or
combination thereof), the Board’s choice of
procedure is not unconstrained. Rather, the
Board is under a duty of procedural fairness and,
as such, can hold a written hearing only where it
is procedurally fair on the facts of a given case to
do so. The factors to which the courts look in
determining what the duty of procedural fairness
requires include the nature of the substantive
decision that the tribunal will be making, the
nature of the statutory scheme (and the terms of
the statute) pursuant to which the tribunal
operates, the importance of the tribunal’s decision
to the persons affected by it, the legitimate
expectations of those persons, and the choices of
procedure made by the tribunal itself. In Allard,
Rowles J.A gave considerable weight to the last
of these factors in determining that the Board’s
duty of procedural fairness had been met. More
generally, a central consideration in determining
whether a tribunal’s duty of procedural fairness
has been satisfied is whether affected persons
have had the opportunity to put forward their
views and evidence for the tribunal’s
consideration on the merits of their case. Here, it
appeared from the Board’s reasons that, despite
the absence of an oral hearing, the Board had in
fact considered those matters which the
appellants had said they wished to challenge on
appeal. There is no absolute entitlement to crossexamination and, in the circumstances, a written
hearing was sufficient.
The Board subsequently decided again in favour of
a written hearing in Bang v. Area 19, 2010
PAABBC 20101736 which, like Allard, was a
residential appeal. The Board noted that where
there is little dispute about the facts, where there
are no credibility issues, where non-party witnesses
are not required, and where the parties have the
ability to prepare written submissions, a hearing by
written submissions is often the most practical, cost
-effective method of deciding an appeal.
PREHEARING DOCUMENT
DISCLOSURE IN BRITISH
COLUMBIA
Submitted by: James David Houston,
Crease Harman & Company, Victoria, BC
Those of you who practice before the Property
Assessment Appeal Board (the “Board”) have
undoubtedly participated in many Appeal
Management Conferences (AMC’s) where either
or both parties are seeking production of
information which will assist them in preparing for
an appeal or even for determining, upon a review
of the information produced in this forum, whether
an appeal is necessary or a resolution short of
hearing should be explored.
In Lehigh Portland Cement Limited et al v.
Assessor of Area 01 - Capital 2009 PAABBC
20091446 the Assessor and the City of Colwood,
which had also appealed Lehigh’s assessment,
sought production of offers to purchase the
subject properties which both the Assessor and
Colwood had reason to believe were in existence.
The properties at issue were part of a large gravel
pit which was on the verge of being mined out
and thereafter to be developed as a large mixeduse development which would be comprised of a
significant number of single-family dwellings and
other uses to support the residential component.
Lehigh resisted production of these documents
relying upon the Board’s reasoning in Interwest
Property Services v. Area #10 (2009 PAABBC
20090316) asserting that the test established in
Interwest had not been met. In Interwest, supra.,
the Board determined that the test for prehearing
production of documents required that “…the
Board must find that the request for production is
for a document or other thing that is relevant,
necessary, and appropriate and is not privileged.”
The Assessor and Colwood took a different view,
relying primarily on the provisions of Board Rule
15(2)d), which provides:
Page 5
(2) The member or registrar presiding at an
appeal management conference may make
any order considered appropriate for the
efficient conduct of the appeal and, without
limitation, may
(d) require a party to produce to the board or
another party, or allow the board or
another party access to, any documents or
other information which may be material
and relevant to an issue in the appeal;
The power of the Board to compel prehearing
disclosure of documents is also found at Section
34(3)(b) of the Administrative Tribunals Act which
provides, in part:
(3) Subject to section 29, at any time before or
during a hearing, but before its decision, the
tribunal may make an order requiring a person
(b) to produce for the tribunal or a party a
document or other thing in the person's
possession or control, as specified by the
tribunal, that is admissible and relevant to
an issue in an application.
Before the Board, Lehigh took two positions in
opposing the production of the requested
documents.
The first was that they were
confidential commercially sensitive documents
which
contained
confidentiality
provisions
prohibiting their disclosure to third parties. The
second was that Interwest set out the appropriate
three-part test which had not been met in the
instant case:
1. that the information is relevant (not simply
may be relevant);
2. necessary and appropriate and;
3. is not privileged.
Vice-Chair Sandhu, writing for the Board,
determined that these offers, while relevant, had
not been shown to her to be necessary in arriving
at a determination of actual value in that she was
not convinced that the parties’ appraisers would be
unable to conclude a value in the absence of the
offers. If so finding, Ms. Sandhu had this to say:
[36] Given the above, although I consider the
requested information is relevant and appropriate,
I do not consider the information is “necessary” in
the determination of actual value, and therefore, I
make no Order for production of the requested
documents/information.
While Ms. Sandhu would not order production of
the requested information on the basis that it had
not been shown to be “necessary” to determining
actual value, she nevertheless went on to
determine whether the offers would have been
privileged and as such not subject to production in
any event. Briefly put, Ms. Sandhu found that
while such information may be commercially
sensitive as between the parties, the public
interest in having the most accurate assessment
information on the rolls for determining tax liability
outweighs the private commercial interests and
she would not have withheld production on that
ground alone.
The Assessor disagreed with the decision of Ms.
Sandhu and requested that the Board state a
case for the Court’s opinion pursuant to Section
64 of the Assessment Act which permits a party,
during the course of an appeal, to request the
Board to seek the Court’s opinion on the
questions stated. Unlike a Requirement to State
a Case issued under Section 65, where the Board
has no ability to refuse to seek the Court’s opinion
on questions of law arising out of a final Board
decision, Section 64 is permissive as the Board
may choose to await the ultimate conclusion of
the appeal before forwarding the questions to the
Court. In this case, Vice-Chair Sandhu forwarded
the questions to the Court during the currency of
the appeal.
The Assessor stated five (5) questions for the
Court’s opinion:
1. Did the Board err in law in interpreting section
34(2) of the Administrative Tribunals Act and
Rule 15 (2)(d) of the Board’s Rules of
Practice by finding that information which was
“relevant and appropriate” but which the
Board did not find was “necessary”, did not
have to be produced on a prehearing
application for the production of documents.
2. Did the Board err in law pursuant to section
34 of the Administrative Tribunals Act when it
held that “the correct test for production of
documents or information” application
pursuant to Section 34 (3) (b) of the
Administrative Tribunal Act is whether “the
information is relevant (not simply may be
relevant), necessary and appropriate and is
not privileged”.
3. Did the Board err in law when it held that Rule
15 (2)(d) of the Board’s Rules of Practice
“does not reflect the Board’s jurisdiction in the
Administrative Tribunals Act and because the
Board as an administrative tribunal, is bound
Page 6
by legislation, the legislation must take
precedence over the Board’s enactments”.
4. Did the Board err in law when it held that Rule
15(2) (d) of the Board’s Rules of Practice
were inconsistent with the provisions of the
Administrative Tribunals Act and therefore
were ultra vires the rule making powers of the
Board as set out in Section 11 of the
Administrative Tribunals Act.
5. Did the Board err in law when it held that in
the context of an application for prehearing
production of documents under Section 34 (3)
(b) of the Administrative Tribunals Act in
“Determining what is necessary to an issue
may require a pre-weighing of the information
on his own in the context of other evidence,
as well as a balancing of the parties interests
and benefit obtained from disclosure
compared to any resulting prejudice”.
Shortly before the Court was set to hear the
Lehigh Stated Case, our Court of Appeal handed
down its reasons in another assessment matter
Weyerhauser Company Limited v. Assessor of
Area 04 – Nanaimo-Cowichan 2010 BCCA 46
and revisited the issue of what standard of review
was to be applied in the Stated Case process.
expertise in and certainly no more expertise than a
reviewing Court. On that basis it was determined
that the appropriate standard was correctness.
The Court then went on to analyze the Board’s
reasons for denying production of the documents
sought and concluded that the Board had fallen
into error. Sewell J’s reasons for so doing are
found at paragraphs 38 of the decision. The
Court essentially found that the Board’s main
error was made in determining that section 40 of
the ATA governed the test for prehearing
production and that the application in this case did
not meet that test. Section 40 provides:
INFORMATION ADMISSIBLE IN TRIBUNAL
PROCEEDINGS
40 (1) The tribunal may receive and accept
information that it considers relevant,
necessary and appropriate, whether or not
the information would be admissible in a court
of law.
(2) Despite subsection (1), the tribunal may
exclude anything unduly repetitious.
(3) Nothing is admissible before the tribunal
that is inadmissible in a court because of a
privilege under the law of evidence.
(4) Nothing in subsection (1) overrides the
provisions of any Act expressly limiting the
extent to or purposes for which any oral
testimony, documents or things may be
admitted or used in evidence.
As discussed earlier, there are two avenues
available to parties to have a Stated Case filed
with the Court for it’s opinion. The permissive
mechanism under section 64, which takes place
during the currency of an appeal, and the
mandatory mechanism under Section 65, which
takes place after the appeal has been heard and
determined on its merits.
In Lehigh, Mr. Justice Sewell, in reviewing the
Court of Appeal’s decision in Weyerhauser and the
Supreme Court of Canada’s decisions in Dunsmuir
and Nolan, came to the conclusion that because of
the unique nature of a reference to the Court under
section 64 of the Assessment Act the standard of
review to be applied had not been addressed in the
previous case law and therefore undertook the fourpart analysis established by Dunsmuir to
determine the correct standard of review. His
discussion of this exercise can be found at
paragraphs 24-30 of the decision. In essence,
Sewell, J concluded that the question before him
was the interplay between sections 34 and 40 of
the Administrative Tribunals Act and Rule 15 of
the Board’s Rules of practice and procedure – an
analysis that the Board possessed no particular
(5) Notes or records kept by a person
appointed by the tribunal to conduct a dispute
resolution process in relation to an application
are inadmissible in tribunal proceedings.
Sewell J. reasoned that Section 40 above did not
restrict the ability of the Board to order prehearing
production of evidence but governed what
evidence could be adduced at a hearing and
further that the Board, by virtue of the power
given to it under Section 40 could accept into
evidence evidence which would not be admissible
in Court. By importing the test for admissibility at
a hearing into the prehearing production process
contemplated by Sections 34 and Rule 15, the
Board restricted rather than expanded prehearing
production rights. In concluding on this point, the
Court had this to say:
[38] The effect of the Panel Chair’s interpretation
of ss. 34 and 40 of the ATA is to restrict the
power of the Board to require pre-hearing
Page 7
discovery
of
documents.
Such
an
interpretation could significantly hamper the
ability of Board to adjudicate upon appeals
and the ability of the parties before it to
prepare for such appeals.
FURTHER PRODUCTION OF INFORMATION
AND REFINEMENT OF ISSUES
The Board anticipates cooperation around the
production of other “non-controversial” information
as follows:
[39] It is quite clear to me that in promulgating the
Rules the Board appreciated the importance
of pre-hearing disclosure in appropriate
cases. Rule 15(2)(d) places the power to
require disclosure in the hands of the Board
member presiding at a pre-appeal conference
and introduces further limitations, that of
materiality and relevance, with respect to any
documents ordered to be produced.
• If the taxpayer or agent requests previous years’
CONCLUSION
Lehigh makes it clear that prehearing production of
information sought should be made if the material
sought is material and relevant. The question of
whether its admission in the hearing proper is one
left to the panel chair hearing the appeal using the
criteria set out in Section 40 of the ATA which also
requires that it be necessary for the proper
determination of the issues before the Board.
preliminary way at the first group AMC. Through
appeal management the parties will be expected to
more specifically identify and narrow the issues and
provide closure on issues. In the absence of unusual
circumstances, once there has been closure of
issues, the Board will not be inclined to permit further
issues to be added to an appeal. In most cases, the
Board will expect closure of the issues prior to
September 2009.
OTHER ISSUES
The information sought in Lehigh was
contentious, and obtaining an order compelling
production was time consuming and costly. As
most of you practicing in British Columbia are
aware, the Board has set certain expectations for
production without the need for Board intervention
and soon after appeals have been filed. These
requirements can be found in the Board’s
GUIDELINES AND EXPECTATIONS FOR APPEAL
MANAGEMENT OF COMMERCIAL AND INDUSTRIAL
APPEALS, May 2009.
These Guidelines include the following directives:
The Assessor should have provided the
Appellant or agent with the Property Valuation
Summary (PVS) or equivalent for the property
under appeal.
The Appellant should have
provided the Assessor (where appropriate) with
income and expense statements for three years
prior to the valuation date, rent rolls for the
valuation year and one year prior, and summaries
of any new leases or lease renewals within one
year of the valuation date. To ensure the timely
production of this information, agents should
request production of this information from their
clients when the appeal is initiated and not wait
for the Board to require production.
PVSs for the property appealed , the Assessor
should provide PVSs (or equivalent) for 2 previous
years, unless there are extenuating circumstances.
• If equity is an issue, the agent may request copies of
PVSs for up to five comparable properties.
Assessor will provide the PVSs requested.
The
• The parties are expected to identify issues in a
• The parties may make additional information requests
at the initial AMC or agree to a process with timelines
for this purpose. Where production of requested
information is not controversial, parties will be expected
to co-operate in a timely manner with its production
without the necessity of extensive Board involvement.
For those of you who attended the CPTA seminar
held recently in Toronto and heard from the
various Board chairs and members of MPAC etc.,
alternative dispute resolution is fast becoming an
integral part of the appeal process. In order for
this to work effectively and efficiently, which
should allow all parties to enjoy significant
savings of time and money, early and reasonable
production should be the order of the day
regardless of whether you are acting for the
assessor or an aggrieved taxpayer.
More
complete information disclosure will allow all
parties to identify issues earlier on in the
proceedings and narrow the issues more quickly
as the true areas of dispute will emerge early on.
At least for now in British Columbia,
disagreements about the nature and scope of
production of prehearing information will now be
guided by the Court’s reasoning in Lehigh which
would seem to cast a broad net for production
before a hearing.
Page 8
WESTERN CHAPTER
UPDATE
Submitted by Chapter Chair Monica Keller,
Talisman Energy Inc., Calgary, AB
The keynote speaker this year is Dr. Sam Shaw.
Dr. Shaw is the Past President of Northern
Alberta Institute of Technology, and is a past
recipient of Alberta Venture’s Businessman of the
Year award. He has twice been recognized as
one of Alberta’s 50 most influential people.
Currently, Dr. Shaw is the Vice President, Natural
Gas Policy and Development with Encana
Corporation in Calgary.
DECEMBER MEETING
The Christmas social was held this year on
December 14th.
As in previous years we
welcomed retirees to join us for lunch and to
celebrate the holiday season.
Other presentations and topics at this year’s
seminar include:
At this year’s December luncheon we had
Kathleen LeClair, Chief Officer of the Capital
Region Board as our guest speaker. The Capital
Region Board was established in April of 2008 by
the Government of Alberta. The Board was given
a mandate to prepare a growth plan that would
promote and ensure the capital region as a model
of regional co-operation in Alberta.
Legal Panel
JANUARY MEETING
Our guest speaker on January 18th was Susan
Cole, President of Enhance Energy. Susan’s
topic of discussion was carbon capture and
enhanced oil recovery.
Other Sessions:
Following the presentation the Western Chapter
held a brief business meeting to discuss
upcoming chapter events and review of the 2009 /
2010 financials.
FEBRUARY MEETING
The February meeting was held this year on
Tuesday the 15th. Our guest speaker was Cliff de
Jong from the City of Calgary. Cliff is a Senior
Special Projects Officer, Building Regulations,
Development and Building Approvals department.
The presentation covered marijuana grow
operations and their impact on neighborhoods
and property values.
ANNUAL EDUCATION SEMINAR
The Western Chapter education seminar
brochure has been finalized and distributed to the
membership. The seminar will be held on March
7th – 8th in Calgary at the Radisson Hotel. Once
again the committee has worked very hard to
organize a fabulous program. The committee
members include Kirk Wasylik, Ben Matthews, Ian
Magdiak, Janet Lee, Brian Waters, Mark Cathro,
Brett Van Hereweghe and Trevor Selanders.
Provincial Updates– Alberta – Saskatchewan
– British Columbia
– Manitoba – Alberta
– Saskatchewan
– British Columbia
Assessment
Updates
– City of Calgary
– City of Edmonton
Real Estate Trends
and Forecasts
– Alberta – British Columbia
•
•
•
•
•
Canadian Association of Petroleum Producers
Neostream Technologies
Directional Drilling
Highest and Best Use
Explosion Man – An inspirational story on
workplace safety
THE MGB’S DECISION
REGARDING THE BANFF
SPRINGS HOTEL (MGB 132/10)
Submitted by Carol M. Zukiwski,
Reynolds Mirth Richards & Farmer LLP,
Edmonton, AB
Should the first 6 months of financial
information be used when determining market
value as of July 1st?
At the end of December 2010, the Municipal
Government Board (“MGB”) released a decision
concerning the Banff Springs Hotel in relation to
the 2009 tax year (valuation date of July 1, 2008).
The MGB confirmed the assessment.
All of the hotels in the Town of Banff were assessed
using the income approach to value based on the
Page 9
preceding 3 complete years of financial information
– with one exception. The assessor used the
stabilized income and expense information for the
2005 and 2006 tax years. In discussions with the
hotel owners, the assessor disregarded the income
and expenses for the 2007 tax year because it
showed abnormally high income. If the 2007 year
financial information would have been included,
then the assessments in 2008 for taxation in 2009
would have been higher for all hotels including the
Banff Springs Hotel.
deducted from the value of the property, or
whether these expenditures were over and above
reserves for replacement and were an investment
to improve the value of the hotel. The MGB held
that the purpose of the expenditures was to
improve the value of the hotel and its income
earning potential. In reaching its decision to
confirm the assessment, the MGB heard evidence
from the assessor, an appraiser, economists, and
representatives of the property owner.
The Banff Springs Hotel argued that the financial
information from the first 6 months of 2008 should
be used, because the financial information from
the first 6 months showed signs of the coming
financial downturn which manifested itself in the
fall of 2008. Further the Hotel argued that signs
of the economic downturn were already showing
in the first half of 2008, and a prudent purchaser
as of July 1, 2008 would have been aware of
them, making the market value lower than the
assessment. The Hotel also challenged the cap
rate used in the preparation of the assessment.
ONTARIO CHAPTER
The MGB followed its reasoning in the Jasper
Park Lodge decision (MGB 121/05) and held that
a partial year of financial information should not
be used, because of the seasonal nature of
earnings in the hotel industry. A complete fiscal
year should be relied upon so as not to skew the
results of the income approach to value. The
MGB commented that income for hotel valuation
should be stabilized on a rolling three full year
basis. The 2008 year will be considered for the
2009 assessment for taxation in 2010.
With regard to the global financial downturn in the
fall of 2008, the MGB held that the severity of the
decline in performance would not have been clear
to a prospective purchaser as of the mid – year
valuation date.
UPDATE
Submitted by Chapter Chair Angie DaCosta,
Cushman & Wakefield Property Tax Services,
Toronto, ON
The Ontario Chapter held its annual National
Valuation & Legal Symposium on February 7th and
8th at the Sutton Place Hotel in Toronto. Our
agenda was jam packed with a variety of different
topics and over 20 speakers between the two days.
From general interest topics to more technical
issues, and the ever popular cross Canada legal
update, very positive feedback was received from
both delegates and speakers. The topics included
the Cross-Canada Legal Update, presentations
from MPAC, BMO Capital Markets, the Executive
Chair of the Environmental and Land Tribunal of
Ontario, AEC International Inc., Altus, DMA Canada
Ltd., RealPAC and a session on RFP preparation. I
would like to thank all our speakers, delegates and
contributors for taking time out of their busy
schedules to participate and help make our
symposium another successful event.
The MGB held that the Hotel failed to meet its
onus to bring evidence to challenge the cap rate
used in the assessment. The MGB declined to
rely on the Hotel’s cap rate evidence because it
was based on portfolio sales, it relied upon
outliers which were not adequately explained, and
it relied upon a sale from after the valuation date.
Included in this newsletter is a request for
feedback from our Chair of Tax Policy, Elena
Balkos. A request has been made by a member
to propose certain changes to legislation – details
provided below. I encourage all our membership
to provide feedback and ideas with respect to this
particular issue and if anyone is interested in
working with Elena regarding tax policy,
legislative changes, lobbying efforts, etc. please
let us know.
The final issue before the MGB concerned
whether the costs associated with extensive
upgrading and renovations on one floor of the
Hotel were a capital expenditure which should be
Upcoming events include a breakfast meeting in
April and our Annual Meeting/Elections & Golf
Tournament in June – details to follow.
Page 10
WHO OWNS AN APPEAL?
GOLF COURSES
Submitted by: David G. Fleet,
Walker Poole Nixon LLP, Toronto, ON
Submitted by: Kenneth R. West,
Walker Poole Nixon LLP, Toronto, ON
The Ontario Court of Appeal recently answered
this question in 80 Mornelle Properties Inc. v.
Malla Properties Ltd., 2010 ONCA 850. The Court
ruled that an assessment appeal is an intangible
personal property right. It can be expressly
assigned or conveyed, in writing, but does not run
with the land nor is automatically transferred
when the land is transferred.
After 10 years of litigation and a number of
different methodologies employed by the
assessment authority to achieve a determination
of Current Value, the end is finally in sight for golf
course owners concerned about their assessed
values. Through the application of the
Assessment Review Board’s Alternative Dispute
Resolution process the National Golf Course
Owners Association and MPAC reached an
agreement that should resolve most of the golf
course appeals outstanding in the province.
Mornelle, a Toronto apartment building owner,
launched and prosecuted assessment appeals for
2003-2006 taxation. Despite closing the sale
transaction of the property in October, 2006,
Mornelle continued to successfully prosecute
those assessment appeals until a property tax
refund was generated in November, 2008 of
approximately $250K. The City paid the entire tax
refund to the current property owner, the
Purchaser from Mornelle, pursuant to section 306
of the City of Toronto Act, 2006. [An identical,
equivalent provision applies to land outside
Toronto under section 341 of the Municipal Act,
2001.] When that property owner refused to hand
any of the tax refund over to Mornelle, it sued the
property owner for unjust enrichment of that
portion of the tax refund attributable to the period
prior to the closing, approximately $230K.
The
court
held
that
the
transactional
documentation between Mornelle and the
Purchaser did not contain any express transfer of
the assessment appeal. Section 306(2)(a) was
held to relieve the City of the responsibility of
determining who is entitled to the tax refund, but
did not provide the Purchaser with a juristic
reason to retain the refund. The Purchaser was
ordered to pay Mornelle approximately $230K,
plus costs.
The court did not address an arguable alternative
interpretation of section 306 of the City of
Toronto, Act, 2006 which would permit the City to
refund only the correct assessed owner for the
taxation year to which a refund applies. However,
this decision is a clear determination of who owns
an assessment appeal in Ontario, and should be
useful to any conveyor of real property.
The golf course cases have presented a number
of interesting developments in the Ontario
assessment practice. The most substantial
development is the employment of Assessment
Review Board’s (“Board”) Alternative Dispute
Resolution (“ADR”) process as a means to reach
a resolution. Additionally, the golf course litigation
saw the Board open the door for appraisal review
witnesses. Finally, and certainly the most notable
for golf course owners, a methodology was
agreed upon. Owners who have supplied all
financial information to MPAC should see offers
for settlement in the first half of 2011.
ALTERNATIVE DISPUTE RESOLUTION
In early 2010, the Board became concerned that
the some 600+ appeals outstanding on golf
courses across the province were stalled. The
parties agreed that it would be an appropriate
opportunity to make use of the Board’s ADR
process. Dates were scheduled for early
December and early January so as to meet with
one of the Board’s experienced ADR members.
The Board assigned a member who had sat on
the first four weeks of hearing for the Glen Abbey
appeal. The process leading up to the first day of
the ADR process saw the Board engage in a
number of pre-hearing events with the intention of
bringing awareness to various golf owners across
the province. It was made clear by the Board at
these pre-hearings that the parties should arrive
to the ADR process ready to attempt to reach an
agreement. As a result of negotiations and the
preparations leading up to the ADR event a
settlement was reached on the first morning of the
ADR process.
Page 11
The settlement creates a massive appraisal
methodology that is fair, understandable,
sustainable, and is retroactive to the 2001
taxation year and will be applied through the
current cycle which is scheduled to end in 2012.
One of the major concerns that was expressed by
many owners throughout the entire process
revolved around the elimination of business
enterprise value within the value of the property.
Thus far those involved in the golf course matters
agree that the settlement fairly eliminates such
enterprise value from the assessment. What is
most important to be noted about the ADR
process is that there was a considerable amount
of scepticism about the process. However, the
process has proved to be a highly effective tool
and has resulted in very successful negotiations.
It appears that not only will the Board push to see
the
ADR
process
employed
in
more
circumstances, there is excellent opportunity for
tax payers to use this process to reduce the cost
of litigation and the time involved.
THE METHODOLOGY FOR GOLF COURSES
The golf course litigation with respect to Glen
Abbey began with position that a rental approach
is the most appropriate approach with which to
value golf course properties so as to exclude
business enterprise value. However, in the course
of negotiations, MPAC and the NGCOA agreed
that for the purposes of evaluating golf courses in
Ontario a pro forma approach was a workable
solution. As a result of the ADR negotiations and
the earlier Glen Abbey litigation, the parties were
able to reach an agreement that will be applicable
to almost every golf course in the province. Issues
remain for golf courses that are deemed to have a
highest and best use as something other than a
golf course property, and for golf courses that
have excess land or other non-golf related issues.
For public facilities, the pro forma will utilize actual
revenue numbers combined with an agreed upon
expense ratio that varies dependent on the
percentage of golf over food and beverage, and
sale of goods. With respect to private facilities,
the revenue numbers must be determined with
reference to a notional green fee rates multiplied
by a standard round count. The agreement also
provides for a 5% management allowance, 4%
reserve for replacement allowance, and a 9%
chattel deduction.
The agreement involves MPAC reviewing the
financial statements of the various clubs under
appeal and providing Minutes of Settlement
detailing MPAC’s conclusions with respect to the
pro forma approach agreed upon. These Minutes
of Settlement should begin to arrive shortly and is
expected that in most cases substantial
reductions will have achieved. It still remains
important that the proposed minutes are reviewed
carefully to ensure that the golf course is being
treated fairly and equitably.
NOTICE TO ONTARIO MEMBERS
Submitted by Elena Balkos, Chair,
Ontario Chapter Tax Policy Committee,
Miller Thomson LLP, Toronto, ON
A member has requested that the Ontario
Chapter of the CPTA write to the Minister of
Finance requesting an amendment to the
Assessment Act (Ontario).
The request is for a legislative amendment to
provide an opportunity for an Request for
Reconsideration (or, perhaps, a Section 40
appeal as well) to be filed by a property owner
that purchases a property after the deadline to
appeal in cases where the previous owner did not
file either an RfR or appeal before the deadline.
The experience was such that many property
owners do not file assessment appeals even if
they believed the assessment to be high due to
an imminent/proposed sale of the property. The
purchaser would then be left with a high
assessment and resulting tax levy, often for up to
75% of the year, with no opportunity for review.
This would not be a "second kick at the can" due
to a sale, which is why it should be qualified that
an appeal was not filed for the year already. The
amendment would allow a new owner to have the
same opportunity in a tax year as everyone else.
Proof of purchase date after the appeal deadline
could be a requirement.
We are requesting members' comments or
concerns with the above proposal. One issue we
noted was that the amendment may also have to
allow for municipalities and MPAC to file appeals
after the deadline in the same circumstances so
that they have equal opportunity for review if they
believe the assessment is too low.
Please forward your feedback and comments to
Elena Balkos at [email protected]
Page 12
des articles en français. Cette initiative a
pour objectif d'élargir à tous les membres
de notre chapitre et aux membres
francophones des autres chapitres la
possibilité de présenter des textes en
français.
QUÉBEC
UPDATE
Submitted by Chapter Chair Jules Mercier,
Prud'Homme, Mercier et Associés, Montréal, QC
Cependant, il faudra prévoir un court
résumé de l'article, en anglais, afin de
permettre à ceux qui seraient intéressés
de communiquer avec l'auteur de l'article.
CHAPTER NEWS
The Quebec Chapter has been very active this
month, with four articles being submitted for your
attention!
Most texts are both French and English and to
this effect the reader must remember that last
year, our Chapter was invited by the National
Executive to produce bilingual articles, whenever
possible.
We really appreciate the opportunity given to us
to express ourselves in French or English.
Please find below the text confirming this
opportunity given to Quebec Chapter members,
as published in the May/June 2010 issue:
"IMPORTANT NEWS – FRENCH
CONTENT – COMMUNICATION
UPDATE
We were informed last week by the
CPTA Executive that they would be very
pleased to see French articles (texts,
comments or analysis) published in the
Communication Update.
Hopefully, this would generate increased
participation from the Quebec Chapter
and other French members from the
other Chapters.
The only request made concerning this
would be to write, at the beginning or at
the end, a small summary written in
English so that members would see what
the articles pertain to and if they are
interested, they could communicate
directly with the author for more
information.
Le comité exécutif de notre association
CPTA nous a informés la semaine dernière
qu'ils seraient très heureux de recevoir et
de publier dans « Communication Update »
Hoping that you will take advantage of
this opportunity for the next publication.
Espérant que vous saurez prendre
avantage de cette opportunité pour la
prochaine édition."
The next issue is scheduled for April 2011 and the
Quebec Chapter would like to invite all its
members to submit any ideas for a text pertaining
to Property Tax Management and Real Property
Assessment or any other topics relating to the
CPTA mission.
In April 2011, both new members of the Executive
Committee, Me Simon Bégin, Secretary and Me
Sylvain Bélair, Vice-president, will be preparing a
short text to introduce themselves.
2011 ASSESSMENT ROLL
Just as a reminder that the deadline to appeal or ask
for a review of assessment is April 30, 2011.
Therefore, those of you interested in having a
preliminary review completed before this date should
act immediately to make sure to meet the deadline.
Again, this is the only opportunity to review the
2011-2013 assessment roll. If not, then the
assessment will remain unchanged for the next
three years.
FEBRUARY 25, 2011
A breakfast information session will be held on
February 25, 2011 and the topic of discussion will
be the 2011 City of Montreal Budget. Mr. JeanFrançois Leclaire will be the speaker.
The presentation is in French and usually the
Power Point presentation is made available a
week or two after the activity on CPTA website.
All information pertaining to this activity was sent to
Quebec Chapter members early in February 2011.
Hope to see you there!
Page 13
CHAPTER EXECUTIVE MEETING
The Chapter Executive will be meeting in early
March 2011 to review the opportunity of an
Education Seminar to be held in March or April,
this year. Members will be informed as soon as
the program is complete.
Henceforth, we can observe a consistent direction
taken by the Courts when we turn to the judgment
rendered by the same Superior Court in the
Boehringer Ingelheim case2 as far as the
exclusion of electrical and mechanical systems
are concerned.
QUEBEC CHAPTER EXECUTIVE
In addition, the conclusion arrived at by Justice
Tôth is in line with many others3 concerning the
unacceptable introduction in evidence for
consideration by the Courts of factors that were
unknown at the date of reference even if those
factors became available at the date of hearing.
__________________
Chair:
Jules Mercier,
Prud'Homme, Mercier and Associates
Vice-Chair: Me Sylvain Bélair,
De Grandpré Chait
Secretary: Me Simon Bégin,
Jolicoeur Lacasse
Treasurer: Gilles Beauchemin,
Canadian Pacific Railway
JUDICIAL CONSISTENCY
1
In Quebec, the Superior Court is the equivalent
of the Supreme Court in other jurisdictions.
2
Application for leave to appeal dismissed.
3
Hôtel le Saint-Sulpice de Montréal c. Montréal
(Ville de) 2009, Q.C.Q.C. 11,801, par. 153156. Laval (Ville de) c. Boehringer Ingelheim
(Canada) Ltée, J.E. 2009, 777 (C.Q.) Windsor
(Ville de) c. Domtar, 2010, Q.C.C.Q., 9031,
par. 48 et s.
Submitted by: M e Gilles Fafard,
De Grandpré Chait, Montréal, QC
A recent judgment rendered by the Superior
Court1 for the district of Bedford reveals a
consistent attitude from the Courts regarding the
application of two major topics that have been
reported in the last two years of Communication
Update issues, that is:
1. the exclusion of the roll of the value of
electrical and mechanical systems when they
are integrated into a structure and are used
or intended for purposes of industrial
production;
ARTICLE 65 MT: EXCLUSION
OF CERTAIN EQUIPMENT AND
SYSTEMS FROM THE ROLL,
AND STANDARD OF REVIEW
Submitted by: M e Simon Bégin, eng.,
Joli-Cœur Lacasse, Montréal, QC
2. the inappropriate utilisation of factors of
adjustments of the cost new of a property
when they became available only after the
date of reference.
Summary of decision by the Quebec Court of
Appeal in Laval (Ville de) v. Boehringer
Ingelheim (Canada) Ltée, 500-09-020889-101,
2010 QCCA 2216
The judgment we are referring to has been
rendered January 18, 2011 by Justice François
Tôth where Ville de Bromont applied for the
review of a previous judgment rendered by the
Court of Quebec (Justice Danielle Côté),
concerning IBM’s industrial property.
In this decision, the Court of Appeal analyzes the
standard of review applicable to decisions of the
Administrative Tribunal of Québec (ATQ) regarding
the inclusion on or exclusion from, the roll of
certain equipment and systems in place in the
building, according to the terms of article 65 MT.
Even if the Superior Court Judge did not concur
with the standard of correctness used by the
Court of Quebec Judge, he decided that the first
Tribunal (TAQ) decision could not be justified
even in view of the standard of reasonableness.
In other words, the Superior Court came to the
same conclusion than the one that was arrived at
by the Court of Quebec.
The Court of Appeal dismisses the motion for
leave to appeal filed by the city of Laval, against a
decision rendered by the Superior Court in judicial
review of a decision rendered by the Court of
Québec sitting in appeal from a decision rendered
by the Administrative Tribunal of Québec (ATQ).
Page 14
The ATQ had ruled that the systems in question
were primarily used for industrial production, yet
entered on the assessment roll certain elements
of these systems, which, according to the ATQ,
are essential to the function of shelter or housing
of the construction.
The Court of Appeal confirms the decision of the
Superior Court regarding the applicable standard
of review to be applied to the decision rendered
by the ATQ (the standard of reasonableness).
After noting the ATQ’s decision that the systems
were primarily being used for industrial
production, the Court of Appeal also confirms the
Superior Court’s decision to exclude the entirety
of the elements comprised in the electrical and
mechanical systems of the building, through the
application of the “all or nothing” principle
regarding exclusions according to the terms of
article 65 MT.
ARTICLE 65 LFM : EXCLUSION
DE CERTAINS ÉQUIPEMENTS
ET SYSTÈMES IMMOBILISÉS
ET NORME DE CONTRÔLE
Soumis par : M e Simon Bégin, ing.,
Joli-Cœur Lacasse, Montréal, QC
Résumé de la décision Laval (Ville de) c.
Boehringer Ingelheim (Canada) Ltée, 500-09020889-101, 2010 QCCA 2216
Dans une décision de la Cour d’appel du Québec,
rendue le 6 décembre dernier, le juge Dalphond
statuait sur une demande de permission d’en
appeler présentée par la Ville de Laval à la suite
d’un jugement en révision judiciaire rendu par la
Cour supérieure (2010 QCCS 2836).
La Cour supérieure avait accueilli une requête en
révision présentée par Boehringer Ingelheim
(Canada) Ltée à l’encontre d’un jugement rendu
en appel par la Cour du Québec (2009 QCCQ
2092), lequel infirmait une décision rendue par le
Tribunal administratif du Québec (TAQ)
(Boehringer Ingelheim (Canada) ltée c. Laval
(Ville de), 2007 QCTAQ 12310).
La question en litige dans le cadre de la
demande
d'autorisation
d’appel
est
l'exclusion ou non, sous l'article 65 LFM, de
certains
équipements
et
systèmes
immobilisés, servant à la production de
protéines et autres composés biochimiques.
Ceux-ci ont été exclus par le TAQ, décision
infirmée par la Cour du Québec, mais
rétablie par la Cour supérieure. La demande
d’autorisation d’appel est rejetée.
LA DÉCISION DU TAQ :
Boehringer a contesté devant le TAQ le défaut de
l’évaluateur municipal d'exclure certains biens
immobiliers, dont le système électrique et les
systèmes mécaniques intégrés à son bâtiment,
d'avis qu'ils constituent des « appareils ou
machines utilisés ou destinés à des fins de
production industrielle » pour son complexe
biopharmaceutique au sens de l'art. 65 LFM.
Le TAQ conclue que les activités de Boehringer
« satisfont à la définition de production
industrielle, en ce qu'elles s'apparentent à un
ensemble d'opérations qui permettent d'obtenir,
par la combinaison et la transformation des
ressources et des matières premières identifiées
(…) des biens nouveaux, mieux adaptés à la
satisfaction d'un besoin ».
Le TAQ analyse les équipements individuellement.
Quant au système électrique et certains systèmes
mécaniques, les membres en portent au rôle les
éléments qu'ils estiment indispensable à la fonction
d'abri ou de logement de la construction, mais non
la majeure partie qu'ils estiment associée à la
production industrielle.
Insatisfaite de la conclusion que des activités se
qualifient comme production industrielle, Laval a
obtenu la permission d'en appeler à la Cour du
Québec. Insatisfaite de la non-exclusion en
totalité des systèmes système électrique et de
certains systèmes mécaniques, Boehringer s’est
aussi portée en appel.
LA DÉCISION DE LA COUR DU QUÉBEC,
EN APPEL :
La Cour du Québec a conclu que les activités de
Boehringer ne constituaient pas de la production
industrielle. Quant à elle, la définition correcte du
concept de « biens nouveaux répondant à un
besoin » correspond à un produit fini, vendable,
consommable ou utilisable par des usagers, et les
biens fabriqués à Laval ne sont que des
prototypes ne pouvant satisfaire sa définition de
« produits finis ».
Donc, les opérations de
Page 15
productions pour fabriquer ces prototypes ne
peuvent se qualifier de production industrielle.
L'appel de Laval est donc accueilli sur ce point et
l'appel de Boehringer est rejeté.
LA DÉCISION DE LA COUR SUPÉRIEURE, EN
RÉVISION JUDICIAIRE :
Boehringer s’est alors tournée vers la Cour
supérieure par requête en révision judiciaire. Le
débat s'y limitait à deux questions :
1) La conclusion du TAQ que certains
appareils immobilisés et systèmes sont
utilisés ou destinés à des fins de production
au sens de l'art. 65 LFM pouvait-elle être
renversée par la Cour du Québec?
2) Si tel n'est pas le cas, les systèmes
électriques et mécaniques de l’immeuble de
Boehringer doivent-ils être exclus en totalité
du rôle ?
La Cour supérieure conclut que la norme
d’intervention applicable est celle de la décision
raisonnable à l'égard de la première question
contrairement au juge de la Cour du Québec, et
conclut que la décision du TAQ y satisfait.
Quant à la deuxième question, la Cour supérieure
souligne que la LFM requiert, pour des systèmes
uniques, qu'ils soient inclus en totalité ou exclus
en totalité. Il conclut que la réponse du TAQ à la
deuxième question doit en conséquence être
infirmée, puisque celui-ci avait conclu que les
systèmes électriques et mécaniques étaient
principalement destinés ou utilisés à des fins de
production industrielle, mais, au lieu de les
exclure du rôle en totalité, en avait pourtant inclus
les éléments qu’il estimait être indispensable à la
fonction d’abri ou de logement de ladite
construction. Enfin, la Cour supérieure retourne le
dossier au TAQ pour ajustements aux valeurs
indiquées aux rôles.
LA DEMANDE D’AUTORISATION D’APPEL À
LA COUR D’APPEL :
Citant d’abord l'arrêt Montréal (Ville de) c. Société
d’énergie Talisman inc., [2007] R.J.Q. 2312
(C.A.), la Cour d’appel réitère que l’application de
l'art. 65 LFM, afin de déterminer s'il s'agit d'un cas
d'exclusion, « est une question qui fait partie de la
pratique journalière du TAQ, lequel possède une
expertise plus grande en cette matière qu'un juge
de la Cour du Québec siégeant en appel », et
donc, que la norme de contrôle que devait retenir
la Cour du Québec n'était pas la décision
correcte, mais plutôt la décision raisonnable.
La Cour d’appel est d’accord avec la conclusion
du juge de la Cour supérieure quant à ce que le
juge de la Cour du Québec avait erré en droit en
retenant la norme de la décision correcte. Elle
souligne que la Cour du Québec, siégeant en
appel d’une décision d'un décideur spécialisé, doit
faire preuve de déférence à l’égard non
seulement des questions de fait, mais aussi des
questions d'application de sa loi aux faits mis en
preuve, incluant la définition des contours de la
norme juridique.
Ayant identifié une erreur du juge de la Cour du
Québec relativement à la norme d’intervention
lorsque ce dernier a exigé une réponse correcte
quant à savoir si les activités de Boehringer
peuvent
être
qualifiées
de
« production
industrielle » au sens de l'art. 65 LFM, une
question d'application de la loi aux faits mis en
preuve, il revenait à la Cour supérieure de décider
si le jugement de la Cour du Québec aurait été le
même si elle avait appliqué la bonne norme, soit
celle de la raisonnabilité.
La Cour supérieure a conclu que la décision du
TAQ à l’effet que les équipements exclus étaient
« utilisés à des fins de production industrielle »
faisait partie des issues raisonnablement
possibles, et ainsi que la Cour du Québec n'aurait
pas dû intervenir pour renverser la décision du
TAQ. La Cour d’appel est ici d’avis qu’il n’y a pas
de faiblesse apparente dans la conclusion du juge
de révision quant au caractère raisonnable de la
décision du TAQ.
Quant à la deuxième question, la norme de la
décision raisonnable s'applique à la décision du
TAQ et, sous la LFM, l'inclusion partielle n'est pas
permise : c’est le principe du tout ou rien. La Ville
invite la Cour d’appel à conclure que ces systèmes
ne servaient pas principalement à de la
« production industrielle » pour infirmer le jugement
de la Cour supérieure sur ce point, et ultimement
faire porter ces systèmes au rôle en totalité.
Or, le TAQ a estimé que ces systèmes étaient
principalement utilisés à des fins de production
industrielle, une conclusion purement factuelle qui
mérite déférence et que le juge de la Cour
supérieure n'a fait que retenir. La décision du
TAQ de les inclure en partie (certains éléments
Page 16
des systèmes) devait donc être corrigée pour
soustraire les systèmes du rôle, en totalité. Tel
que l’a décidé le juge de révision, le dossier
devait être retourné au TAQ pour la détermination
de l'ajustement à faire aux rôles.
La Cour d’appel rejette donc la requête pour
permission d’appeler.
La Cour d’appel souligne en terminant que la
décision du TAQ ne signifie pas que les centres de
recherche redeviennent bénéficiaires d'une
exclusion, mais uniquement que les équipements
servant à la fabrication à grande échelle de
composés biochimiques sur place, plutôt que leur
achat d'une société affiliée ou d'un tiers, afin de
servir dans la fabrication de prototypes de
médicaments, peuvent raisonnablement bénéficier
de l'exclusion prévue à 65 LFM.
PROBLÈMES FRÉQUEMMENT
RENCONTRÉS EN
ÉVALUATION MUNICIPALE
Soumis par : M. Éric Riberdy, B.A.A., É.A.,
SNC Lavalin Nexacor, Montréal, QC
Après quelques années dans le domaine de
l’évaluation municipale pour le compte d’un grand
portefeuille immobilier, nous avons dû faire face
à certaines situations problématiques qui
s’avèrent avec le temps être récurrentes.
Considérant la complexité du portefeuille
immobilier qui nous concerne, certaines
admissions et/ou omissions ont été entendues
par le passé dans l’application des méthodes
d’évaluation avec les différentes autorités
municipales.
Toutefois,
suite au dépôt de
quelques rôles d’évaluation, de différentes
envergures, la négociation des valeurs nous
permet de constater que dans certains cas, les
municipalités et les villes transgressent les règles
préalablement établies.
Nous constatons également, de façon générale,
qu’il existe un fort taux de roulement à l’intérieur
des différents services d’évaluation et que les
dossiers techniques sont souvent transférés d’un
employé à un autre sans que ce dernier en
comprenne la complexité. En effet, lors des
périodes pré-dépôt, nous constatons, par
exemple,
que
certaines
dépréciations
fonctionnelles ne sont plus considérées comme
elles le devraient. Ce phénomène nous permet
donc de croire en un manque de rigueur et/ou de
pièces justificatives à l’intérieur des dossiers
municipaux nous concernant.
La venue de
nouveaux techniciens et/ou évaluateurs dans les
différents services d’évaluation amène du sang
nouveau, certes, mais n’en demeure pas moins
qu’on ne doit pas nécessairement réinventer la
roue.
Un peu dans le même ordre d’idée, comme nous
devons travailler avec différentes autorités
municipales, nous déplorons le manque de
constance entre celles-ci dans l’application des
différentes méthodes d’évaluation. Bien que nous
soyons tous soumis aux mêmes normes de
pratiques en tant qu’évaluateurs agréés, certains
d’entre eux se permettent de les modeler à leur
façon.
Par exemple, dans la méthode du revenu,
l’application de la réserve structurale ainsi que la
dépense de gestion sont deux postes de
dépenses souvent omis par les municipalités,
alors que la théorie et la doctrine en évaluation de
même que certaines jurisprudences mentionnent
clairement qu’elles doivent être considérées. Les
villes se défendent dans bien des cas en nous
disant qu’ils les considèrent dans leurs analyses
du taux global de capitalisation, toutefois ils ne
peuvent nous en faire la démonstration. Pourquoi
faire simple quand on peut faire compliqué ?
Il ne faut toutefois pas mettre tout le monde dans
le même bain. En effet, certaines municipalités
appliquent les différentes méthodes d’évaluation
comme il se doit de l’être. Alors en tant que
gestionnaire immobilier, nous devons modifier
l’application de nos méthodes d’évaluation en
fonction de la ville ou de la municipalité avec
laquelle nous travaillons.
Non seulement nous rendent-elles la vie un peu
plus compliquée, mais c’est aussi la profession
d’évaluateur agréé qui est un peu entachée.
* Ce texte n'engage que l'auteur de cet article et n'exprime
que son opinion.
Page 17
CHALLENGES ENCOUNTERED
WHEN DEALING WITH
MUNICIPAL ASSESSORS
Submitted by: Mr. Éric Riberdy, B.A.A., É.A.,
SNC Lavalin Nexacor, Montréal, QC
After a few years of working with different
municipalities, we have been faced and are
struggling with repeated inaccuracies and
oversights on the part of some municipalities.
As a property management company with a
distinctive asset, we have, in the past, arrived at
certain agreements with municipal assessors on
specific issues related to the valuation methods
used. However, in the course of our discussion
and negotiation with the assessment authorities,
we can easily notice that those rules are broken
many times.
One of our observations is the large employee
turnover among municipal assessors. As such,
agreement reached in the past are often not
respected because their files might not be properly
documented. One of the most common examples
is the application of the functional depreciation
which is not considered as it should be.
Along the same line, we also noted a lack of
uniformity or consistency in the application of the
different methods of valuation among the
municipal assessors. Although we, as chartered
appraisers, are all bound by Professional
Standards, many municipal assessors allow
themselves to do otherwise. Some of them will
not use the valuation methods as referred to by
the valuation doctrine and theory or stated in the
jurisprudences. As an example, in the application
of the income approach, a few assessors do not
consider the structural reserve or the
management fees. According to them, these are
considered in the overall capitalization rate
analysis, but they cannot do the demonstration.
So, why can’t we keep it simple?
As a result, those examples are sufficient
arguments to believe that there is a lack of
thoroughness and/or improper documentation
within our municipal records.
Indeed, new
technicians and assessors bring new blood to the
municipal assessment world but this does not
mean that we need to review the basic method
that has already been previously created or
optimized by others.
In spite of this, let us not put everybody in the
same basket. Many municipal assessors apply
the different methods of valuation as they should
be. Therefore, as a real estate manager, we have
to adapt our valuation methods accordingly.
This no doubt renders our life a little harder, but
most importantly it may be a taint to the
profession!
* The contents of this article are the sole responsibility of the
author and only express his opinion.
Page 18
The CPTA Western Chapter
2011 Education Seminar
March 7 and 8, 2011
Please go to www.cpta.org’s Articles of Interest for Program & Registration Form
REGISTRATION FEES:
Members
$325.00 + GST = $341.25
Non-Members
$350.00 + GST = $367.50
Payment can be made by Cheque, VISA, AMEX, or MC
FEES INCLUDE:
Two day classroom seminar -Reference Material
Breakfast & Buffet Lunches Monday & Tuesday
Monday Night Social Gathering (Cocktails & Hors d’oeuvres)
(Please join your fellow delegates to visit, catch-up, and
review the seminars discussion)
If you would like an electronic version of the seminars
presentations, please bring your USB stick.
REGISTRATION:
To register please provide your name, association
and contact address along with the appropriate fee.
Mark Cathro
Telephone:
Fax:
E-mail:
CHEQUES PAYABLE TO:
MAIL CHEQUES TO:
Suncor Energy Limited
(403) 296-6919
(403) 296-7926
[email protected]
CANADIAN PROPERTY TAX ASSOCIATION
WESTERN CHAPTER
Mark Cathro, Suncor Energy Services
PO Box 2844 150 6th Ave SW, Calgary, AB T2P 3E3
Radisson Hotel Calgary Airport, 2120 16th Avenue N.E., special room rate of $129.00
plus taxes (2 Queen Beds) or $149.00 plus taxes (1 King Bed). Refer to Canadian
Property Tax Association room block when making reservations. Rooms to be held
until February 25, 2011. Reservations: 403-291-4666 Toll Free: 1-800-395-7046
Website: www.radisson.com/calgaryca_airport
CANCELLATION: Registration for the seminar may only be cancelled without charge
any time up to 7 days prior to the seminar. After that time, a 15% cancellation fee
will be applied.
Registration Deadline: February 28th
Page 19
THE 2011 NATIONAL NOMINATIONS COMMITTEE
CHAIR:
Gerry Divaris, Toronto, ON
MEMBER: Jules Mercier, Montréal, QC
• 416.359.2533
[email protected]
• 514.844.4431 x 29 [email protected]
MEMBER: Jerry Kirkland, St. John’s, NL • 902.429.1811
[email protected]
If you intend to let your name stand, or if you wish to nominate a CPTA member
for the position of Vice President, Communication,
please contact one of the above committee members or notify Gerry Divaris
through the National Office by Friday, July 29th, 2011.
45th Annual CPTA National Workshop
September 25 - 28, 2011
Hilton Hotel, Niagara Falls, Ontario - http://www.niagarafallshilton.com
Room Type
Days
Single/Double Rate
2 Queens, City View
Sunday to Friday
Saturday
$159.00
$179.00
2 Queens, American Fallsview
Sunday to Friday
Saturday
$169.00
$189.00
2 Queens, Both Fallsview
Sunday to Friday
Saturday
$179.00
$199.00
(visit www.cpta.org / Annual Workshop to see the hotel views)
Complimentary parking
Page 20
ADVANCE NOTICE 45th Annual CPTA Na onal Workshop September 25 ‐ 28, 2011 Agenda will Include: •
Mr. Ron Dale, Historian ‐ Legends of Niagara: an explora on of Niagara’s rich history •
Dr. David K. Foot, Footwork Consul ng Inc. ‐ Changing Expenditure Pa erns in an Aging
Popula on: Implica ons for Real Estate and Financial Markets •
Dr. Michael Tretheway, InterVISTAS Consulting Inc. ‐ Valua on of Airports / Special Purpose Proper es •
Mr. Don Thompson, The Oil Sands Developers Group ‐ Oil Sands Development: Se ng the
Record Straight •
Cross Canada Legal Panel •
Valua on / Appraisal / Assessment Panel •
First Na on Tax Commission •
Na onal Market Update •
Annual Mee ng and Elec on of Officers
•
and more to be confirmed...
____________________________________________________________________________ Keynote Speaker: Ron Dale - Legends of Niagara
Ron Dale, historian with the federal heritage agency Parks Canada, will take delegates on a journey through
time to part the mists of the past and reveal the fascinating story of Niagara Falls with some emphasis on the
War of 1812, the last conflict in which Americans and Canadians fought against each other.
Fifteen thousand years ago as the glaciers of the last ice age slowly retreated, the waters of what would
become Lake Erie flowed down the Niagara River into Lake Iroquois. Lake Ontario exists as a remnant
of this giant glacial lake, the waters of which lapped the Niagara Escarpment. When the level of Lake
Iroquois began to drop, drained by the St Lawrence River once that channel was ice free, a waterfall
formed at Queenston, tumbling over the limestone escarpment into the slowly draining lake. Over the
next several thousand years, as the lake level continued to drop the falls became more turgid, and the
brink of the falls continued to erode the soft limestone and retreat towards Lake Erie. The Niagara Falls
that we see today continues this journey.
The area was also a hotly contested war zone. During the War of 1812 the bloodiest battle of that
conflict was fought on Lundy’s Lane, not far from the Falls. Until the 1860’s Lundy’s Lane was one of
the top destinations for American tourists in North America. The Civil War made the significance of
Lundy’s Lane fade.
With the 200th anniversary of the War of 1812 just around the corner, the history of that conflict and of
places like Niagara Falls, steeped in history, will be highlighted. Lundy’s Lane will again be a
Page 21
destination of choice.
CPTA National Workshop
Speaker Highlights
_________________________________________________________________________________________________
Dr. David K. Foot, Professor Emeritus of Economics at the University of Toronto, is the author of the best-selling books
Boom Bust & Echo: How to Profit from the Coming Demographic Shift and the updated paperback, Boom Bust & Echo:
Profiting from the Demographic Shift in the 21st Century. These books are based on his research on the economic impacts of demographic change and on the resulting implications for both private and public policies. His books have sold
over 300,000 copies in Canada and were on the Canadian best-seller lists for over 3 years.
David Foot is an outspoken and controversial demographics expert who can bring to life demographic statistics and make
the aging of society relevant to any specific interest group. He explores how changing demographics, especially the aging
of the massive boomer generation and the coming into the marketplace of their children, the echo generation, is redefining society’s needs.
Dr. Foot contends that demographics explains two-thirds of everything -- whether the subject is business planning, marketing, human resources, career planning, corporate organization, the stock market, housing, education, health, recreation, leisure, and social and global trends. Change can’t be avoided, but it can be prepared for and managed. With an
understanding of demographics, a business, an individual or a government has a strong foundation upon which to build.
David Foot addresses issues from a global perspective as well as from a North American perspective, having been born
in England, raised in Australia, educated in the United States (Ph.D. from Harvard) and living in Canada. He is a much
sought after speaker for corporations, associations, community groups and governments.
An award winning teacher, David Foot received one of the national 3M Awards for Teaching Excellence administered by
the Society for Teaching and Learning in Higher Education and twice received the University of Toronto undergraduate
teaching award.
Dr. Michael Tretheway is Executive Vice President with InterVISTAS Consulting Inc. which is an employee owned consulting practice with offices in Vancouver, Washington D.C., Chicago, Ottawa, Winnipeg, Montreal, San Juan Puerto Rico, and London UK. InterVISTAS specialises in the transportation and tourism industries, and has grown to a practice of
over 65 team members. Dr. Tretheway earned a Ph.D. in economics from the University of Wisconsin and served for 14
years as Associate Professor in the Faculty of Commerce and Business Administration at the University of British Columbia, where he continues as an Adjunct Professor. He has served as an advisor to governments, industry and consumer
groups in the U.S., Canada, Australia, New Zealand, Africa, and the European Union. He has taught in Canada, France,
Brazil, China and Malaysia.
His areas of expertise include productivity analysis, statistical and econometric analysis, transportation economics, marketing and economic development. He has published five books and roughly 40 scholarly papers. He has appeared as an
expert witness before tribunals, regulators and courts in the U.S., Canada, Australia, New Zealand, Hong Kong and
South Africa. Prior to joining InterVISTAS, Dr. Tretheway was Special Advisor to the President of the Vancouver International Airport Authority.
Mr. Don Thompson is president of The Oil Sands Developers Group (OSDG). As president, Mr. Thompson is chair of
the OSDG’s Board of Directors, which determines the group’s position on various issues that are brought forward by the
members for collaborative consideration, action and resolution. Mr. Thompson is also a spokesperson for the OSDG and
he is often called upon to interact with key stakeholders such as government ministers, mayors and councils. The OSDG
is responsible for ensuring the 28 member group accomplishes its vision of energizing sustainable communities. The
group’s mandate is to ensure information dissemination to government, key stakeholders and other interested parties
about industry perspectives while consulting with stakeholders and bringing forward issues and challenges for the orderly
development of Alberta’s oil sands deposits.
Don Thompson has worked for Syncrude since 1979 and became corporate secretary and an officer in 1988 and remained in that position until 2007. Over this period, his responsibilities included ensuring the governance of both Syncrude and its housing affiliate, Northward Developments Ltd., were managed professionally and ethically. He also acted
as a liaison between Syncrude and its owners and shareholders. Mr. Thompson is now focused on Syncrude’s regulatory
and external affairs with particular emphasis on responding to the large number of environmental and external relationship challenges facing Syncrude – a position directly related to his work with The Oil Sands Developers Group – and on
mentoring of the “next generation” of Syncrude expertise.
22
Mr. Thompson’s extensive experience with the oil sandsPage
industry
in combination with his educational background in forestry, zoology, executive and financial management has earned him a reputation as a trusted and reliable source to lead
and speak on behalf of The Oil Sands Developers Group.
CPTA CHAPTER MEETINGS & EVENTS
BC CHAPTER
April
May
PAAB Meeting
BCA Meeting
WESTERN CHAPTER
February 15
March 7 & 8
April 6
May 17
June 14
Chapter Meeting
Education Seminar
Chapter Meeting
Business Meeting
Chapter Elections
ONTARIO CHAPTER
April
June
Breakfast Meeting
Annual Meeting/Elections & Golf Tournament
QUEBEC CHAPTER
February 25
March/April
May 19
November 24
Breakfast Information Session
Education Seminar
Golf Tournament
Christmas Dinner and Meeting
NEW CAREER OPPORTUNITIES HAVE BEEN POSTED PLEASE VISIT THE CPTA WEBSITE
Canadian Property Tax Association, Inc.
All rights reserved.
No part of this work covered by the publishers copyright
may be replaced or copied in any form or by any means
(graphic, electronic or mechanical, including
photocopying, recording, taping or retrieval systems)
without the permission of the publisher.
“Information contained in Update is obtained from
sources deemed to be reliable and neither the CPTA nor
contributors take any responsibility for its accuracy. If
any readers intend to use or act on any information stated herein, they should obtain their own legal, tax or accounting advice.”
Page 23
Page 23