



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


Morguard 
          Investments Ltd. v. Assessor of Area #12  Coquitlam,






2006 
          BCCA 26



Date: 20060123





Docket: CA032346

Between:

Morguard 
    Investments Limited, Coquitlam Centre,
Hudson's Bay Company, Zellers Inc., and the
Property Assessment Appeal Board of British Columbia

Respondents

(Appellants)

And

Assessor 
    of Area #12  Coquitlam

Appellant

(Respondent)








Before:


The 
          Honourable Madam Justice Rowles




The 
          Honourable Mr. Justice Donald




The 
          Honourable Madam Justice Newbury






P.W. 
          Klassen


Counsel for the Appellant




J.D. 
          Fraser


Counsel for the Respondents
Hudson's Bay Co. and Zellers Inc.




Place 
          and Date of Hearing:


Vancouver, British Columbia




November 17, 2005




Place 
          and Date of Judgment:


Vancouver, British Columbia




January 23, 2006






Written 
          Reasons by
:




The 
          Honourable Madam Justice Newbury




Concurred 
          in by:




The 
          Honourable Madam Justice Rowles

The Honourable 
          Mr. Justice Donald







Reasons for Judgment of the Honourable Madam Justice 
    Newbury:

[1]

This is an appeal, with leave, from the determination by a Supreme 
    Court judge of one of two preliminary issues arising in connection with an 
    appeal by way of stated case under s. 65 of the
Assessment Act
, 
    R.S.B.C. 1996, c. 20 (the "Act").  The discrete issue is the meaning 
    of the phrase "a person affected by a decision of the board on appeal" 
    as it appears in s. 65(1)
,
dealing with standing to bring an 
    appeal on a question of law from the Property Assessment Appeal Board to the 
    Supreme Court of British Columbia.

Factual Background

[2]

The appellants Hudson's Bay Company (HBC) and Zellers Inc. are "anchor" 
    tenants in Coquitlam Centre, a shopping centre in Coquitlam owned by Morguard 
    Investments Limited ("Morguard").  It is assessed as a whole, and 
    not in the names of the various entities that lease and occupy the shopping 
    centre premises.  Morguard appealed its property assessments in respect of 
    the Centre for the assessment years 2001-2003.  In late 2001 and early 2002, 
    the Property Assessment Appeal Board (the "Board) conducted "appeal 
    management conferences" between the Assessor and Morguard, in which the 
    main topic of discussion was document disclosure.  The Board ordered the disclosure 
    of certain documents, and once the Assessor had been provided with the information 
    he required, Morguard and the Assessor agreed on a resolution of the appeal 
    which specified a lower value for class 6 assets included in the shopping 
    centre property.  Shortly thereafter, in July 2003, the Board issued a series 
    of orders accepting the parties' recommendations and directing the Assessor 
    to amend the 2001, 2002 and 2003 assessment rolls accordingly.  In keeping 
    with its usual practice, the Board did not convene a hearing or require the 
    parties to provide further information or submissions.  HBC and Zellers had 
    no involvement at any stage of this process, although Morguard did inform 
    Zellers in June 2001 that it was appealing that year's assessment.

[3]

As a result of the Board's orders, the assessed value of the shopping 
    centre was reduced and Morguard received a rebate of property taxes for all 
    three years in the total amount of some $929,000.  Strangely, however, due 
    to the tax apportionment provisions in the leases of the two tenants, the 
    amounts they were required to pay to Morguard in respect of property taxes 
    under their leases were
increased
.  The tenants were first notified 
    of this by letter dated November 7, 2003 from Coquitlam Centre's retail manager 
    stating that Morguard's recent appeals had "met with some success" 
    but that the results of the appeals on anchor tenants were "not all positive": 
     Morguard required the payment of an additional $35,651 plus G.S.T. from HBC 
    and an additional $30,210 plus G.S.T. from Zellers.  The two tenants were 
    given a breakdown of the tax computations but were not provided with copies 
    of the Board's decisions and orders until December 21 after their solicitor 
    requested same from the Board.  On December 23, HBC and Zellers delivered 
    a "Requirement to State a Case" to the Board, pursuant to s. 65(1) 
    of the Act.

[4]

Evidently, the Board then received submissions from counsel concerning 
    a preliminary objection made by the Assessor in respect of the Board's jurisdiction 
    to state the case.  In the Assessor's submission, the Board did not have such 
    jurisdiction because HBC and Zellers were not persons affected within the 
    meaning of s. 65.  The Assessor also took the position that once an objection 
    had been raised, the Board was required to make its initial determination 
    of the point before referring the matter to the Supreme Court.  Counsel for 
    the tenants took the opposite position.

[5]

On January 13, 2004 the Board by its chair, Ms. Vickers, declined to 
    decide the matter, ruling that it was for the Court to determine.  She stated:

While 
    section 65 is worded in such a way so as to suggest that it is for the Board 
    to make this determination, in my view its intent is really to provide a right 
    of appeal to the Supreme Court, on a question of law, from a decision of the 
    Board to "a person affected".  Whether someone is "a person 
    affected" is, therefore, a matter affecting the Supreme Court's jurisdiction 
    to hear the appeal.  The jurisdiction of the Supreme Court to entertain the 
    appeal, is an issue for the Court's determination.

Even 
    if the question of whether someone is a "person affected" entitling 
    them to require the Board to state a case is a matter within the Board's jurisdiction, 
    the Board's decision on this point would, of course, be reviewable, on a standard 
    of correctness, by the Supreme Court in any event.  Further, in order to make 
    this determination, the Board may require, as it would in this case, evidence 
    from the parties as to how the applicant is alleged to be affected by the 
    Board's decision.  It simply makes more sense, that when the standing of an 
    applicant to require an appeal is disputed, that issue be determined by a 
    Court who must ultimately determine the appeal, and not the Board.

I further rely on the Court's decision in
GDB Investments Ltd. v. Assessor 
    of Area #4  Port Alberni
, 1998 Stated case 417, in concluding that issues 
    of compliance with section 65 are not within the Board's jurisdiction but 
    are matters for the Court.

With her letter, Ms. Vickers enclosed a draft of the 
    proposed form of stated case, which was required to be filed on the same day.  
    In due course, it was filed in the Supreme Court of British Columbia, seeking 
    the Court's opinion on three questions that need not be described here.

[6]

When the matter came before the Supreme Court in September 2004, Mr. 
    Justice Scarth stated the two preliminary issues before him as follows ((2004) 
    1 M.P.L.R. (4th) 214, 2004 BCSC 1270):

1.         
    Was the Property Assessment Appeal Board required to determine as a prerequisite 
    to filing this stated case with the court registry of the Supreme Court pursuant 
    to s. 65(4) of the
Assessment Act
the threshold question of whether 
    the Hudsons Bay Company and Zellers Inc. are, in the circumstances of this 
    stated case, person(s) affected by a decision of the board on appeal within 
    the meaning of s. 65(1) of the Act and therefore entitled to require the 
    board to refer the decision to the Supreme Court for appeal on a question 
    of law alone in the form of a stated case.

2.         Whether or not the board was required to decide 
    the threshold question before filing this stated case with the court registry, 
    are the Hudsons Bay Company and Zellers Inc. in the opinion of the Court 
    person(s) affected within the meaning of s. 65(1) of the Act.  [para. 2]

The Board appeared but took no position on either question.

[7]

At para. 38 of his reasons, Scarth J. decided that the Board had been 
    under a duty to decide whether the tenants were "persons affected by 
    the decision of the Board on appeal" within the meaning of s. 65, prior 
    to the filing of the stated case in the Supreme Court.  In his analysis:

In determining if the applicant for a stated case falls within the group 
    entitled to require the board to state a case under s. 65 the board is not 
    usurping this Courts role of deciding whether it has jurisdiction to hear 
    the stated case; it is determining whether the board is required, and hence 
    has the jurisdiction, under the Act to state the case; albeit the board and 
    the Court, in performing their respective functions, may be required to address 
    the same issue, namely, is the applicant for the stated case a person affected 
    by the boards decision.  [para. 40]

However, he went on to deal with the second preliminary 
    question, and neither party to this appeal has made any objection to his having 
    done so.

[8]

After reviewing counsel's submission, the Chambers judge concluded 
    at para. 63 that HBC and Zellers were persons affected for purposes of s. 
    65(1).  He stated:

Plainly 
    the
Act
distinguishes between those entitled to complain against an 
    entry in the assessment roll before a review panel, those entitled to appeal 
    the decision of the review panel to the board, and those entitled to appeal 
    the boards decision to this Court.  The latter group is manifestly narrower 
    than the first two:
Assessor of Area #08  North Shore/Squamish Valley 
    v. Joan Anne Wedley et al
, 2000 BCSC 1365, at ¶ 7.  This does not, in 
    my view, suggest that a person affected in s. 65(1) of the
Act
is 
    restricted to an owner of the property in question or, conversely, that a 
    tenant
per se
is excluded from the term person affected.

One 
    must, I think, look at the realities of the situation as they are presented 
    in the factual matrix of this case.  Insofar as The Coquitlam Centre is concerned, 
    the municipality in which it is situate, the City of Coquitlam, imposes taxes 
    against the lands and improvements pertaining to the Centre.  The assessed 
    value of those lands and improvements, as determined pursuant to the
Assessment 
    Act
, is a factor in establishing the amount of those taxes.  Clearly, 
    the owner of the lands and improvements, here Morguard Investments Limited, 
    is a person affected by a change in the assessed value of the lands and improvements 
    and hence by a decision of the board on appeal.  The owner must, of course, 
    pay the property taxes imposed against its lands and improvements or run the 
    risk of losing its property.
The Hudsons Bay Company and Zellers Inc., 
    in my view, are not in a significantly different position.  If they fail to 
    pay the property taxes as part of their rent under their leases with the owner 
    they run the risk of losing their leasehold interests in the lands and improvements.  
    They too are affected by a change in the assessed value of those lands and 
    improvements and hence by a decision of the board on appeal.

I am unable to read into s. 65(1) of the
Assessment Act
a distinction between the imposition of taxes against the lands and improvements 
    of Coquitlam Centre for which the owner is liable
qua
owner and for 
    which these tenants are liable
qua
tenants.  Both owner and tenants 
    are persons affected by a decision of the board on appeal.  [paras. 64-66; 
    emphasis added.]

Accordingly, Scarth J. ordered that the question of whether 
    the tenants were "person[s] affected by a decision of the board on appeal" 
    should be answered "yes", and that the Board should have decided 
    the threshold question.

The Statutory Scheme

[9]

Before reviewing counsel's arguments on the appeal in detail, it may 
    be worthwhile to review briefly the assessment and appeal processes provided 
    for in the Act, and in particular, the statutory "timelines" and 
    provisions regarding standing.

[10]

As the Assessor noted in his factum, the Act provides for the annual 
    valuation and classification of real property, and for procedures whereby 
    certain persons are entitled to appeal such assessments after they have been 
    entered on the assessment roll.  The assessments are used by various taxing 
    authorities as the basis for levying real property taxes pursuant to other 
    enactments such as the
Community Charter
, S.B.C. 2003, c. 26, 
    the
Taxation (Rural Area) Act
, R.S.B.C. 1996, c. 448 and the
Vancouver Charter
, S.B.C. 1953, c. 55.

[11]

The first stage of "complaint" from an entry in an assessment 
    roll is to a review panel under s. 33(1).  A person may make such a complaint, 
    as may the Minister of Finance and Corporate Relations, the commissioner, 
    a local government or an assessor, as set out in ss. 32(2), (3) and (4) respectively.  
    The complainant must file notice of the complaint with the assessor no later 
    than January 31 of the year following the year in which the roll was completed. 
     If the complaint is not resolved under s. 10(2), the time for hearing by 
    the review panel must be set before March 16.  By that date as well, the review 
    panel must complete any investigation under s. 38(2)(a) and adjudicate 
    the matters raised by the complaint (s. 38(4).)

[12]

Under s. 41 of the Act, the assessor is required by April 7 following 
    the review panels sitting to deliver notice of the decision, or of its refusal 
    to adjudicate the complaint, to the owner of the property to which the decision 
    relates and to the complainant.  Section 42 requires the assessor to amend 
    the assessment roll in accordance with any directions given by the review 
    panel under s. 38(2)(d).

[13]

Part 6 of the Act deals with appeals from decisions of the review panel.  
    Such appeals must be based on the grounds described in s. 32(1).  Section 
    50 provides that such an appeal may be brought by "a person" who 
    files a notice of appeal with the Board on or before the April 30 date following 
    the sitting of the review panel.  Sections 51-52 state:

51        
    If the board receives a notice of appeal in accordance with section 50, the 
    board must promptly provide a copy of the notice to each of the following 
    who is not the appellant:

(a)        the owner of the property;

(b)        the assessor;

(c)        the municipality or regional district in respect 
    of which the property is located;

(d)        the commissioner;

(e)        the complainant before the review panel, if 
    that person is not a person specified in paragraphs (a) to (d).

52        (1)        The following persons 
    are parties to an appeal under this Part:

(a)        the appellant;

(b)        the owner of the property, if not the appellant;

(c)        the complainant at the review panel, if not 
    the owner or appellant;

(d)        the assessor.

(2)        The board may direct that
any other person 
    who may be affected by the appeal
may be added as a party to the appeal, 
    including, without limitation, a local government in respect of which the 
    property is located, the government or the commissioner.

(3)        The board may permit a person to take part 
    in an appeal as an intervenor.

(4)        
    An intervenor may take part in an appeal only to the extent permitted by the 
    board.  [Emphasis added]

(Subsections 
    (3) and (4) were deleted by S.B.C. 2004, c. 45,
after
the material 
    events of this case, but see s. 33 of the
Administrative Tribunals Act
, 
    S.B.C. 2004, c. 45.)

[14]

Section 61 requires the Board to issue its decision "at the earliest 
    opportunity after hearing an appeal" and, on request by a party, to provide 
    written reasons for its decision.  The Board must deliver notice of its decision 
    on an appeal to "the parties to the appeal and any intervenors" 
    and to the commissioner.  On receipt of the Board's decision, the assessor 
    must make any required amendments to the assessment roll "promptly", 
    and ensure that a copy of notice of the Board's decision is available for 
    public inspection:  s. 63(1).

[15]

Part 7 of the Act provides for appeals by stated case on questions 
    of law.  Section 64 deals with the referral of a question of law, in the form 
    of a stated case, to the Supreme Court by the Board, either on its own initiative 
    or "at the request of one or more of the persons affected by the appeal" 
    at any stage of the proceeding.  Upon the filing of a stated case, the Board 
    must "suspend the proceeding as it relates to the stated case and reserve 
    its decision until the opinion of the Supreme Court has been given", 
    and decide the appeal in accordance with the Court's opinion. The stated case 
    must be brought on for hearing within one month from the date on which it 
    is filed, and the Court must hear and determine the stated case and give its 
    decision within two months.

[16]

Section 65, with which we are concerned in this case, deals with appeals 
    on questions of law alone brought from decisions of the Board.  I reproduce 
    the relevant provisions below:

65        (1)        Subject to subsection 
    (2),
a person affected by a decision of the board
on appeal, including 
    a local government, the government, the commissioner or an assessor acting 
    with the consent of the commissioner, may require the board to refer the decision 
    to the Supreme Court for appeal on a question of law alone in the form of 
    a stated case.

(2)
Within 21 days after receiving the decision 
    referred to in subsection (1)
, the person must deliver to the board 
    a written request to refer the decision to the Supreme Court, and include 
    in the request the question of law to be referred.

(3)        On receipt of the request under subsection 
    (2), the board must promptly provide written notice of the request to

(a)        the parties to the appeal from which the reference 
    is requested and any intervenors, and

(b)        the commissioner, if the commissioner was 
    not a party.

(4)        Within 21 days after receiving the request 
    under subsection (2), the board must file the stated case with the court 
    registry, including the decision on appeal, a statement of the facts and all 
    evidence material to the stated case.

(5)        The stated case must be brought on for hearing 
    within one month from the date on which it is filed under subsection (4).

(6)        Subject to subsection (7), the court must 
    hear and determine the stated case and within 2 months give its decision.

* * *

(9)        An appeal on a question of law lies from a 
    decision of the Supreme Court to the Court of Appeal with leave of a justice 
    of the Court of Appeal.

(10)      
    The board must direct the assessor to make any amendment to the assessment 
    roll necessary to give effect to a decision made by the Supreme Court or the 
    Court of Appeal under this section.  [Emphasis added.]

[17]

As counsel noted, none of the appeal provisions of the Act deals specifically 
    with lessees of real property.  However, Mr. Fraser brought to our attention 
    s. 4, which permits the registered holder of a charge to give notice of his 
    or her charge to the assessor and to request copies of all assessment and 
    tax notices issued during the duration of the charge.  Upon receipt of such 
    notice, s. 6(4) requires the assessor to enter the chargeholders name and 
    address on the assessment roll and to mail to the lessee a copy of any assessment 
    notice in respect of the subject property.  In addition, s. 6 (7) contemplates 
    that in respect of classes of property specified by regulation, the owner 
    must on request by a lessee of all or part of the property, deliver a copy 
    of the notice to the lessee.  There is no evidence that HBC or Zellers gave 
    the assessor any notice under s. 4, or that s. 6(7) applies to the shopping 
    centre premises leased by them.  Nor is there any requirement that chargeholders 
    who have invoked s. 4 be given notice of the decisions of review panels or 
    of the Board made on an appeal.

[18]

In summary, the Act provides very wide rights of appeal to review panels 
    and to the Board. Literally any person can advance a complaint or appeal at 
    both levels, whether or not he or she holds any interest in the assessed property 
    or is affected personally by the assessment decision.  At the final stage, 
    appeals by stated case on questions of law, the right is narrower:  a person 
    may appeal only if he or she is affected by a decision of the board on appeal.  
    This general scheme has existed for many years and through many iterations 
    of the
Assessment Equalization Act
and
Assessment Act.
The 1960 revision of the 1953 Act (c. 32, 2
nd
Sess.), 
    for example, provided in s. 44(1) for a person who was dissatisfied with 
    a decision of the court of revision to appeal to the Assessment Appeal Board, 
    and in s. 51(2) for any person affected by the decision of the Board on appeal 
    to require the Board to submit a stated case to the Supreme Court on a question 
    of law:

51 (2)
Any person affected by the decision of the Board on appeal
, 
    including a municipal corporation acting on the recommendation of the Assessor 
    and on the resolution of its Counsel, including a Provincial Assessor acting 
    with the consent of the Minister of Finance, and including the commissioner,
may, after he has served on all persons affected by the decision a written 
    notice of his intention
to require the Board to submit the case to the 
    Supreme Court, by correspondence addressed to and received by the Board within 
    twenty-one days of the receipt of the decision by such person, require the 
    Board to submit the case for the opinion of the Supreme Court on a question 
    of law only.  [Emphasis added]

[19]

Similarly, Part VII of the
Assessment Act,
S.B.C. 1974, 
    c. 6, provided in s. 60(1)  for a person who was dissatisfied with a decision 
    of the Court of Revision to appeal to the Board.  The statute did not require 
    the Board to notify anyone of its decision, except the appropriate assessor: 
    s. 66(1).  Section 67(1) and (2) then provided as follows with respect to 
    appeals from the Board:

67.  
    (1)
Any person affected by the decision of the board
on appeal, including 
    a municipality on the resolution of its council, the Minister of Finance, 
    and the commissioner, has,
within twenty-one days of receipt of the decision 
    of the board
, the right of appeal to the Supreme Court on a question of 
    law only.

(2)  At any stage of the proceedings, the board on its own initiative, 
    or
at the request of one or more of the persons affected by the appeal
, 
    may submit, in the form of a stated case for the opinion of the Supreme Court, 
    a question of law arising in connection with the appeal, and shall reserve 
    its decision until the opinion of the Supreme Court has been given, and the 
    board shall then decide the appeal in accordance with the opinion.  [Emphasis 
    added]

[20]

The same general pattern was repeated in the
Assessment Act
, 
    R.S.B.C. 1979, c. 21 at ss. 67 and 74, the relevant provisions of which stated:

67(1)
Where a person
, including a municipality, the minister, commissioner, 
    or assessor, is
dissatisfied with the decision of a Court of Revision
, 
    or with the omission or refusal of the Court of Revision to hear or determine 
    the complaint on the completed assessment roll, he may appeal from the Court 
    of Revision to the board.

* * *

74(1)  
    At any stage of the proceedings before it, the board, on its own initiative 
    or at the request of
one or more of the persons affected by the appea
l, 
    may submit, in the form of a stated case for the opinion of the Supreme Court, 
    a question of law arising in the appeal, and shall suspend the proceedings 
    and reserve its decision until the opinion of the final court of appeal has 
    been given and then the board shall decide the appeal in accordance with the 
    opinion.

(2)
A person affected by a decision of the board on appeal
, including 
    a municipal corporation on the resolution of its council, the Minister of 
    Finance, the commissioner, or an assessor acting with the consent of the commissioner, 
    may require the board to submit a case for the opinion of the Supreme Court 
    on a question of law only by

(a)  delivering to the board,
within 21 days after his receipt of the decision
, 
    a written request to state a case; and

(b)  delivering,
within 21 days after his receipt of the decision
, 
    to all persons affected by the decision, a written notice of his request to 
    the board to state a case to the Supreme Court.  [Emphasis added]

[21]

Beginning in 1989, with the enactment of the
Assessment (Amendment) 
    Act
, S.B.C. 1989, c. 20, and ending in 1998 with the enactment of 
    the
Assessment Amendment Act
, S.B.C. 1998, c. 22, one variation 
    of note was in force: s. 68(6)(b) provided with respect to appeals from a 
    court of revision, that any other person affected by the appeal who is accepted 
    as a party by the board or the panel or member conducting the appeal could 
    be a party to the appeal.  This provision was at issue in
Yorke v. Assessor 
    of Area #9
(1992) 70 B.C.L.R. (2d) 135 (B.C.S.C.), discussed below.

[22]

The wording of s. 65(1) and (2) of the 1996 revision (R.S.B.C. c. 20) 
    is quoted at para. 16 above.

Analysis

[23]

Who, then, is a person affected by a decision of the board on appeal 
    within the meaning of s. 65(1)?  Case law suggests that the phrase a person 
    affected, as it has appeared in preceding enactments, is not wide enough 
    to include a person who has a mere public interest, including that of a 
    taxpayer, in the assessment of another taxpayers property.  Thus in
Mellor 
    v. Harbour Park Developments Ltd
. (1970) S.C. 67, Seaton J., then 
    a judge of the Supreme Court of British Columbia, concluded that a taxpayer 
    with no interest in the subject property was not a person affected for purposes 
    of s. 51(2) of the
Assessment Equalization Act
, R.S.B.C. 1960, 
    c. 18.  (See para. 18 above.)  Seaton J. reasoned:

The 
    appellant does not claim any interest in the land.  I gather that he is a 
    resident of Vancouver, and I presume, for the purposes of these reasons, a 
    taxpayer.
That is no help.  If every taxpayer is a person affected, the 
    appellant fails because he has not given notice to every other taxpayer
.  
    The section provides that he may require the board to submit the case only 
    after he has served all
persons affected
.

The 
    term must mean the same thing on each of the occasions it is used in the section.  
    The Legislature did not intend an appellant to serve all taxpayers, and I 
    conclude that the term persons affected must be somewhat narrower than that.

The appellant claims to be a person affected, because he exercised the 
    right of any person to appeal to the Court of Revision and the Board.  Can 
    it be said that because he exercised those rights he is now a person affected?  
    I think not.  (At 326; emphasis added)

Seaton J. also noted an Alabama decision,
M.W. 
    Smith Lumber Co. v. Alabama Public Service
24 So. (2d) 409 (1946), 
    which held that the words affected thereby in an enactment refer to one 
    who has a personal interest in the subject matter and not a mere public interest 
    in common with the general public, and the order challenged subjects him to 
    actual or threatened legal injury.

[24]

This court ultimately dismissed Mr. Mellors appeal (see (1970) S.C. 
    327), although the issue before the panel was his application for an extension 
    of time in which to bring his appeal under s. 51(7) of the
Assessment 
    Equalization Act
.  The Court concluded that the latter statute, rather 
    than the
Court of Appeal Act
, applied and that Mr. Mellor was 
    out of time.  The Court did not deal with the meaning of person affected.

[25]

As will also be apparent from the legislative review above, the requirement 
    construed by Seaton J. in
Mellor
that an appellant serve notice 
    of his request on all persons affected by the decision was not carried forward 
    to s. 67 of the 1974 revision of the
Assessment Act
. It did 
    reappear in s. 74(2) of the 1979 Revised Statutes and in s. 63(3)(b) of the 
    1996 revision until the latter was amended by S.B.C. 1998, c. 22.

[26]

Mellor
was cited and followed, albeit in a different 
    statutory context, in
Yorke v. British Columbia (Assessor of Area #9)
,
supra
.  In that case, the Committee of Progressive Electors (COPE) 
    sought to challenge the assessment of the former Expo site which was owned 
    by Concord Pacific Developments Ltd..  At the time fixed for the hearing of 
    the assessors appeal from the Court of Revision to the Assessment Appeal 
    Board, COPE sought to be added as an intervenor under what was then s. 68(6) 
    of the
Assessment Act,
which permitted an appeal to be made 
    by various persons and by any other person affected by the appeal who is 
    accepted as a party by the board or the panel or member conducting the appeal.  
    Parrett J. held that COPE was not a person affected.  In his analysis:

The purpose of s. 68(6)(b) is not to provide a mechanism to allow any 
    taxpayer to appear and participate in the hearing for that right is provided 
    through the provisions of s. 40 of the Act which provides the board with a 
    discretion to recognize and add as a party persons affected by the appeal.  
    When viewed in the context of the legislative scheme as a whole
it is intended 
    that such persons be individuals, organizations or representatives not enumerated 
    in s. 68(4) who are subject to actual or threatened injury or benefit arising 
    from alterations or possible alterations to their right or property
.   
    To come within the section it is not sufficient to demonstrate merely a public 
    interest which that person holds in common with the general public [;] such 
    an interest may entitle a person to participate but only through the mechanism 
    provided in s. 40.  This is also the answer to the argument that the present 
    appellants have a representative character, in that they represent groups 
    of individual taxpayers [;] their representative character can give them only 
    the right to participate through the procedure provided in s. 40.  Mr. Rankin 
    in his argument suggested that there must be a vision at least of public participation 
    in this process [;] the legislation provides the reality of that participation 
    but lays down the requirements of that participation to ensure an orderly 
    process.  (at 142; emphasis added).

(See also
GDP Investments Ltd. v. Assessor of Area 
    05  Port Alberni
(1999) SC 417 (B.C.S.C.)).

[27]

A more recent case, decided by Lowry J. (now J.A.), is
Wedley 
    v. British Columbia (Assessor of Area #8  North Shore/Squamish Valley
) 
    2000 B.C.S.C. 1365.  This was an appeal brought by an assessor from a decision 
    of the Board dealing with the question of whether G.S.T. was to be included 
    in the valuation of a condominium Mr. and Mrs. Wedley had purchased some years 
    earlier.  The assessors appeal was by way of stated case and the Wedleys 
    also appealed.  The assessor objected when several other property owners sought 
    to participate in the hearing in Supreme Court.  Lowry J. sustained the objection, 
    holding as follows:

In my view, 
    while the statute provides for complaints to a review panel and appeals to 
    the Board being taken by others, it is only the Wedleys, the owners of the 
    subject property, who can be said to be affected by the decision of the Board, 
    and only they who can appeal to this court.
To be a person affected by 
    the decision one must have a personal interest in the subject-matter, not 
    a mere public interest
.  His or her rights in respect of the property 
    assessed must be affected by the decision:
Mellor v. Harbour Park Developments 
    Ltd. et al.,
and
GDP Investments Ltd. v. Assessor of Area 05  Port 
    Alberni
, (21 May 1999), Vancouver A982380 (S.C.).  It is then only the 
    Wedleys who have standing to be heard on this appeal.  [para. 8; emphasis 
    added].

[28]

None of these cases deals with the position of a lessee, and counsel 
    have not located any case that does.  Mr. Fraser naturally submits on behalf 
    of HBC and Zellers that a tenant whose rent may by contract (i.e. the lease 
    terms) be increased or decreased according to the owners property tax payable, 
    clearly has more than a mere public interest in the assessment.  In his 
    submission, the tenants have interests in real property and are affected financially 
    by a decision (or more specifically, an approval of a settlement reached by 
    the landlord and the Assessor) such as that made by the Board in this case, 
    even though their liability for increased rent occurred as the result of the 
    terms of their private lease arrangements with Morguard.

[29]

Looking for the moment only at the phrase a person affected by a decision 
    of the board, I agree with Mr. Frasers submission on this point.  In my 
    view, the ordinary and natural meaning of the phrase would include persons 
    such as HBC and Zellers who have an interest in the land being assessed and 
    whose rent will be increased or decreased as a result of a change in the assessment 
    of the property.  In the modern commercial context, it would be unrealistic 
    to ignore the fact that many leases provide for the tenant to pay, or to reimburse 
    the lessor, for property taxes as a specific add-on to normal rent.  Thus 
    the tenants interest in the settlement reached by Morguard and the Assessor 
    is a legitimate one.  As well, I disagree with Mr. Klassens argument that 
    because the Act deals only with assessments and does not impose liability 
    for taxation, the tenants cannot be said to be affected
by the assessment
.  
    Such an argument
might
prevail if the Act used the words a person
directly
affected in this context, but it does not.

[30]

Counsel for the Assessor contends, however, that this interpretation 
    of the phrase leads to an absurdity for two separate but related reasons.  
    First, he notes that s. 65(2) requires that a person affected who wishes 
    to have an appeal advanced, must deliver to the board a written request within 
    21 days after receiving the decision referred to in subsection (1).  Where 
    the person affected is not already a party or intervenor, however, there 
    is no statutory requirement that he or she receive notice of the decision 
    from the Board (or anyone else): as mentioned earlier, s. 62 requires only 
    that the Board notify the parties to the appeal, any intervenors, and the 
    commissioner.  Since the tenants were not parties at the lower stage in this 
    case, they received no notice from the Board.  Thus the Assessor argues in 
    his factum:

That the interpretation urged by the Tenants results in an absurdity is 
    underscored by the fact that if the Tenants were correct, the appeal process 
    would be potentially never ending.  This is so as the Tenants assert that 
    the time for the filing of the requirement to state a case commences when 
    it
received
the Order of the Board, some five months after the Orders 
    came down.  If this is correct, a tenant could, hypothetically, require the 
    Board to State a Case years after the decision was rendered by simply asserting 
    that they did not receive the decision until then.  In order for the time 
    for an appeal to run from the date of its receipt by the proposed appellant, 
    it is submitted that there must be in the Act an obligation to
send
the decision in the first instance.

[31]

This leads directly to the Assessors second and broader point  that 
    the decision appealed from runs contrary to the intention of the Act that 
    the roll should be finalized and the appeal process should be efficient, as 
    shown by the various time requirements in the Act.  These considerations, 
    Mr. Klassen contends, would be meaningless if a would-be appellant who had 
    not received notice of a decision of the Board within a reasonable time of 
    the making of that decision could, upon learning of it, require that a stated 
    case be referred to the Supreme Court.  Final assessments could be delayed 
    by months or even years beyond what is contemplated.  In the Assessors submission, 
    such a result would be absurd in the sense of conflicting with the intent 
    and object of the Act.

[32]

Unstated, but implicit, in this argument is the proposition that although 
    words used in a statute may have an ordinary and natural meaning, where that 
    meaning would produce absurd consequences, a court will adopt the construction 
    that does not lead to that result .  (See
Boma Manufacturing v. Canadian 
    Imperial Bank of Commerce
[1996] 3 S.C.R. 727, at para. 109, per LaForest 
    J., and
Re Rizzo and Rizzo Shoes Ltd.
[1998] 1 S.C.R. 27, at 
    para. 27.)  In recent years, the Supreme Court of Canada has pointed to an 
    approach to statutory interpretation that is less concerned with what Professor 
    Sullivan calls textual meaning (Ruth Sullivan, Sullivan and Driedger on
Construction of Statutes
(4
th
ed., 2002)) and more 
    with the legislators intent.  She writes:

Even 
    the strongest proponents of consequential analysis do not suggest that courts 
    can blithely disregard the clear intentions of the legislature.  In certain 
    circumstances, however, they may reject the apparent clear meaning of a text.  
    Under the plain meaning rule, courts must apply the text as written because 
    textual meaning is considered the only safe indicator of legislative intent.  
    Under the modern principle, however, the chief duty of the courts is not to 
    give effect to textual meaning, but to what the legislature most likely intended.  
    The courts must harmonize the text as written with other indicators of legislative 
    intent, including presumed intent.  The modern principle justifies the presumption 
    against absurdity by integrating it into the analysis through which the intention 
    of the legislature is constructed.  (At 243.)

[33]

With this integrated approach in mind, I turn to the legislators 
    intent as indicated by the Act.  There is no doubt that two of the general 
    objectives of the assessment and appeal scheme it incorporates are efficiency 
    and certainty in the preparation of the assessment roll.  However, they are 
    not the only objectives.  Two other clear policies of the Act are, to use 
    a colloquial expression, to get it right and to have as open a process as 
    possible.  Presumably this is why the Act provides wide rights of appeal to 
    those who may have information or arguments that the assessing authorities 
    may not have considered or properly reflected in their decisions.  Hence any 
    person may appeal at the first two levels, and any person affected at the 
    third level. It is not consistent with these other objectives to read the 
    phrase any person affected in a narrower way than the ordinary meaning would 
    indicate.

[34]

Moreover, there are various opportunities for delay in the assessment 
    and appeal proceedings, notwithstanding the timelines specified in the Act.  
    Section 57(5), for example, provides that the assessor must enter any reassessments 
    ordered under s-s. 4 on a supplementary assessment roll, notwithstanding a 
    twelve-month deadline imposed by s. 12(6).  With respect to decisions of 
    the Board, s. 61 provides that the Board must issue its decision at the earliest 
    opportunity, no doubt recognizing that it would be virtually impossible to 
    impose a time limitation for this purpose.  The Act does not specify any time 
    within which notice of its decision must be given under s. 62.  Further, s. 
    65(6) provides that on a stated case, the Court must hear and determine it 
    within two months; but non-compliance with that provision is unlikely to affect 
    the validity of the appeal or the Courts decision.  Last, as Mr. Fraser notes, 
    the 21-day deadline imposed by s. 65(4) on the Board has been held to be 
    only directory as far as the Board is concerned:  see
Assessment Commissioner 
    v. Woodwards Stores Ltd. et al.
(1981) S.C. 142.

[35]

All of these instances suggest that the openness of the process and 
    the full availability of rights of appeal may be as important legislative 
    objectives as efficiency and finality in the statutory assessment scheme.  
    At the least, in my view, they suggest that the result arrived at by the Chambers 
    judge below is not absurd in the sense that it contradicts values or principles 
    implicit in the Act or necessary for its operation.

[36]

There are other reasons that also militate in favour of the proposition 
    that the tenants in this case are persons affected.  As has been seen, HBC 
    and Zellers could have appealed under s. 50(1) from a decision of a review 
    panel, in which case they would have become parties to the appeal in accordance 
    with s. 52(1).  Had they done so, they would have been parties and would 
    therefore have been eligible to require the Board to refer the stated case 
    to the Supreme Court.  Yet not having been made aware of or participated in 
    the lower stage of appeal, they are in the Assessors submission not eligible 
    to appeal at this stage. Thus it is implicit in the Assessors argument that 
    a person affected must have been a party to, or intervenor in, the lower 
    appeal.  I am not persuaded that there is good reason to infer such a qualification 
    into the phrase person affected in s. 65.  As Mr. Fraser contends, if the 
    Legislature had intended that only persons referred to in s. 62, or parties 
    to the earlier appeal, were eligible to invoke s. 65(1), it would have been 
    an easy matter to so state.  As it is, the Assessor is required to ensure 
    that the Boards decision is available for public inspection and the Act does 
    recognize the interests of tenants in the assessment of their leased premises.  
    These facts reinforce the argument which arises from the ordinary and natural 
    meaning of the phrase, that the Legislature intended that such persons also 
    have wide rights of appeal, including appeals on questions of law to the Supreme 
    Court.

[37]

I conclude, then, that the ordinary and natural meaning of the impugned 
    phrase is not absurd or contrary to the intent of the Act as a whole, and 
    that each of HBC and Zellers was a person affected by a decision of the Board 
    on appeal for purposes of s. 65.

[38]

I would dismiss the appeal, with thanks to both counsel for their very 
    able submissions.

The Honourable
Madam Justice Newbury

I Agree:

The Honourable
Madam Justice Rowles

I Agree:

The Honourable
Mr. Justice Donald


