Assessor of Area #01 - Capital v. Nav Canada

2016 BCCA 71 Assessor of Area #01 - Capital v. Nav Canada

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Assessor of Area #01 - Capital v. Nav Canada, 2016 BCCA 71 Date: 20160216 Docket: CA42401 Between: Assessor of Area #01 - Capital, Assessor of Area #15 - Fraser Valley, Assessor of Area #17 - Penticton, Assessor of Area #21 - Nelson/Trail Appellants (Appellants) And District of North Saanich Respondent (Appellant) And Nav Canada and Property Assessment Appeal Board Respondents (Respondents) and Docket: CA42404 Between: Assessor of Area #01 - Capital, Assessor of Area #15 - Fraser Valley Office, Assessor of Area #17 - Penticton, Assessor of Area #21 - Nelson/Trail Respondents (Appellants) And District of North Saanich Appellant (Appellant) And Nav Canada and Property Assessment Appeal Board Respondents (Respondents) Before: The Honourable Chief Justice Bauman The Honourable Madam Justice Kirkpatrick The Honourable Mr. Justice Frankel The Honourable Mr. Justice Groberman The Honourable Mr. Justice Willcock On appeal from: An order of the Supreme Court of British Columbia, dated November 5, 2014 (Assessor of Area #01 - Capital v. Nav Canada, 2014 BCSC 2088, Vancouver Registry L130098). Counsel for the Appellants/Respondents, Assessors: P.W. Klassen and C. Simkus Counsel for the Respondent/Appellant, District of North Saanich: S. Manhas Counsel for the Respondent, Nav Canada: J.D. Fraser and B.K. Dell Place and Date of

Hearing: Vancouver, British Columbia December 10-11, 2015 Place and Date of Judgment: Vancouver, British Columbia February 16, 2016 Written Reasons by: The Honourable Chief Justice Bauman Concurred in by: The Honourable Madam Justice Kirkpatrick The Honourable Mr. Justice Frankel The Honourable Mr. Justice Groberman The Honourable Mr. Justice Willcock Summary: The assessors for property tax purposes of four areas (Capital, Fraser Valley, Penticton, and Nelson/Trail), and the District of North Saanich, appeal from a case stated by the Property Assessment Appeal Board to the Supreme Court of British Columbia regarding the assessment of properties used for air navigation services. In assigning a nominal value to the properties, the Board relied on this Court's decision in Southam Inc. (Pacific Newspaper Group Inc.) v. British Columbia (Assessor of Area No. 14 - Surrey/White Rock), 2004 BCCA 245, which held that one cannot use "replacement cost" as a measure of market value where apart from the owner, here Nav Canada, there is no other potential purchaser for the current use. The appellants rely instead on a line of authority from Montreal v. Sun Life Assurance Co. of Canada, [1952] 2 D.L.R. 81 (J.C.P.C.) for the proposition that "replacement cost" is a legitimate approach. The question before the court is how to value lands and improvements for assessment purposes that are

dedicated to a single purpose, entirely unique, with no identifiable market and used by a monopoly for the restricted use. Held: Appeals allowed. As explained in Sun Life, where there are no buyers and sellers (no "higgling of the market"), one must take into account the sum that the owner would pay. The owner can be regarded like any other purchaser. Southam wrongly insisted on the reality of at least a second potential purchaser. In regarding the owner like any other purchaser, one must ignore the subjective value - the special value to the particular owner - and value the property in the hands of an objective owner. Considering the replacement cost, with appropriate adjustments, is an accepted approach for doing so. Reasons for Judgment of the Honourable Chief Justice Bauman: I. Overview [1] How does one value lands and improvements for assessment purposes that are dedicated to a single purpose, entirely unique, with no identifiable market and used by a monopoly for the restricted use? [2] That is the essential question before us on this appeal from a case stated by the Property Assessment Appeal Board (the "Board") to the Supreme Court of British Columbia under the Assessment Act, R.S.B.C. 1996, c. 20 (the "Act"). The lands and improvements (the "Properties") consist of air traffic control towers with related office and parking space and areas that contain meteorological

and other monitoring equipment. [3] The operations, at North Saanich (Victoria), Penticton, Castlegar and Pitt Meadows are those of Nav Canada. It is a federal corporation with a monopoly on the provision of civil air navigation services in Canada. The Properties are not stand alone parcels but are areas within larger parcels, namely the airports in the noted municipalities. [4] The Board concluded that the Properties had a purely nominal value for assessment purposes. In so concluding the Board applied this Court's decision in Southam Inc. (Pacific Newspaper Group Inc.) v. British Columbia (Assessor of Area No. 14 - Surrey/White Rock), 2004 BCCA 245 [Southam C.A.], which held that one cannot use "replacement cost" as a measure of market value where apart from the owner, here Nav Canada, there is no other potential purchaser for the current use. The correctness of the decision in Southam lies at the heart of this appeal. [5] I have concluded that Southam is wrong as it departs from longstanding judgments that bind this Court. I have concluded that the Board has essentially abdicated its role in determining "actual value" for the Properties under the Act. I would allow the appeals and answer the questions of law for which leave has been granted in the manner that follows and for these reasons. II. Facts [6] I would expand on the factual background here by reproducing the

following paragraphs from the stated case: Part 1: RELEVANT FACTS 3. The Properties are not stand alone parcels but are areas within larger parcels, namely the airports. The parties, for the purpose of the appeals, asked the Board to treat these Properties as stand alone sites that could be sold separately in the market although in and of itself, the fee simple of the Properties can not be sold apart from the airports. The use of the Properties is restricted to the provision of civil air navigation services in agreements between the Crown, Nav Canada, and the owners of the fee.

5. In the 1994 National Airports Policy (NAP), the federal government through Transport Canada transferred 150 airports from federal control to local control, either airport authorities or local governments. Under NAP, the federal Crown maintained its role as regulator but not as airport operator. The Crown retained ownership of 26 major airports as part of the National Airports System (NAS) and these major airports were leased to airport authorities responsible for airport operations. The ownership of local/regional and other smaller airports was transferred to local interests.

6. The ownership status of the Properties is as follows: i) For the Victoria airport, the Crown assigned its rights and obligations to the airport operator, Victoria Airport Authority, but ownership of the fee simple interest remains with the Crown. ii) For Pitt Meadows airport, the Crown assigned its rights and obligations to the airport operator, Pitt Meadows Airport Society, which is also the owner of the fee simple interest. iii) For Penticton airport, there has been no assignment and ownership of the fee simple remains with the Crown, with Transport Canada as the airport operator. iv) For Castlegar airport, the Crown assigned its rights and obligations to the airport operator, the City of Castlegar, which is also owner of the fee simple interest.

7. Under NAP, the provision of civil air navigation services was transferred from the Department of Transport to Nav Canada for $1.5 billion, with the federal government responsible for all aspects of aviation safety, including regulatory and legislative control of Nav Canada through the Aeronautics Act and the Civil Air Navigation Services Commercialization Act, SC 1996, c. 20 (the "CANSC Act"). Nav Canada has a monopoly on providing all civil air navigation services in the country.

8. Nav Canada was incorporated on May 26, 1995 under the Canada Corporations Act and derives its responsibilities from the CANSC Act, which states that Nav Canada must provide all users with civil air navigation services (section 9). The letters patent set out Nav Canada's objects which include to "acquire, own, manage, operate, and develop the Canadian air navigation system services (the "ANS") in and over Canada " 9. Air navigation services (ANS) is defined in the CANSC Act as: (a) aeronautical communication services; (b) aeronautical information services; (c) aeronautical radio navigation services; (d) air traffic control services; (e) aviation weather services; (f) emergency assistance services, and, (g) flight information services. 10. "Air traffic control services" are further defined as "preventing collisions between aircraft and expediting and maintaining an orderly flow of air traffic".

11. Nav Canada charges users a fee for provision of these services. However, Nav Canada is a not for profit corporation in that its letters patent requires the corporation to carry on its operations "without pecuniary gain to its members" and to ensure that none of the profits shall benefit the directors but are to be used in promoting its objects.

12. Nav Canada's rights to use and/or occupy the Properties are set out in the Aviation Services and Facilities Agreement ("ASFA") and Leases for Land and for Space. The areas of the footprint of the towers and associated buildings are held pursuant to leases between Nav Canada and the various owners of the fee, while the parking and MET areas [areas containing meteorological and other monitoring equipment] are under license.

13. The ASFA sets out the relationship between the federal government (Crown) and Nav Canada, and the terms of the transfer of air navigation services and assets to Nav Canada as part of the NAP.

14. Nav Canada's purchase of the ANS from the Crown for $1.5 billion was financed entirely by debt. There was nil allocation of value to the type of land and improvements under appeal in the purchase price.

15. The ASFA also stipulates that upon dissolution, Nav Canada's assets revert back to the federal Crown.

16. Section 4.01.02 of each ASFA stipulates that Nav Canada has the right to use identified space and land "only for the provision of any Civil Air Navigation Services." 17. Additionally, the ASFA grants a license to Nav Canada over the entire airport property for the purpose of locating, maintaining and operating any licensed civil air navigation service assets on or under any part of the airport. No rent is payable for this license. Nav Canada uses licensed land for the MET areas, small structures to house civil air navigation services assets, and vehicle parking.

18. The air traffic control towers on the Properties are subject to the lease agreements entered contemporaneously with the ASFA for specified terms (for Victoria, the term is 60 years with provision for renewal, while the other airports, the term is 10 years with ongoing renewals so long as the airport is open to the public or the navigation equipment is required for en route traffic control).

19. The date of transfer varies with each airport but occurred in the mid-1990s. Each lease agreement calls for a one time rental payment of $10 for the entire term. The leases also restrict the use of the premises for provision of only civil air navigation services. III. Board Decision [7] The Board's reasons are indexed as 2013 PAABBC 20120356. [8] Under the heading "What is the Market Value of the Properties?" the Board began by noting s. 19(3) of the Act. I reproduce the subsection in full: 19(3) In determining actual value, the assessor may, except where this Act has a different requirement, give consideration to the following: (a) present use; (b) location; (c) original cost; (d) replacement cost; (e) revenue or rental value; (f) selling price of the land and improvements and comparable land and improvements; (g) economic and functional obsolescence; (h) any other circumstances affecting the value of the land and improvements. [9] This is in aid of the assessor's central duty under s. 19(2): 19(2) The assessor must determine the actual value of land and improvements and must enter the actual value of the land and improvements in the assessment roll. [10] By s. 19(1), "actual value" is defined as "the market value of the fee simple interest in land and improvements". [11] The Board then erroneously referred to s. 19(4), meaning instead to note s. 19(5), which

provides: 19(5) If the land and improvements are to be assessed under section 26, 27 or 28, the assessor must include in the factors that he or she considers under subsection (3), any restriction placed on the use of the land and improvements by the owner of the fee. [12] Section 19(5) applies to the properties located at Victoria, Penticton and Castlegar, but not to the Pitt Meadows property. The Board concluded, and the parties before us agree, that the restrictions on use of the lands and improvements at Pitt Meadows must be similarly considered under s. 19(3) of the Act. [13] The Board proceeded to outline the positions of the parties based on the expert and other evidence led in the hearing. At para. 39 the Board accepted this definition of actual or market value: "the most probable price which a property should bring in a competitive and open market as of the specified date under all conditions requisite to a fair sale, the buyer and seller each acting prudently and knowledgeably and assuming the price is not affected by undue stimulus." [14] The Board then observed (at paras. 40 and 41): [40] A requirement for a conclusion of market value is a competitive and open market for the property being valued. That is not the situation here. There is no competitive and open market for these Properties. [41] These properties do not trade in the market as stand alone properties.

They are thoroughly unique properties the fee simple of which can not be sold except as part of the larger airports. In having to determine a market value for Properties that do not exist and do not trade in the market, the Board is asked to determine an essentially unresolvable question. [15] At para. 43 the Board cited Southam and suggested that it: held that in a determination of the highest and best use of a special purpose property, there must be a market for that use. One cannot find the current use as the highest and best use when there is no evidence of a market for that use. In order to determine the existence of a market, there must be at least one other potential purchaser for the current use, otherwise, there can be no competitive bidding and no market. When there is no market for the current use, determining a property's market value based on the current use inevitably leads to determining value of the current use to the owner and not market value. [16] Notwithstanding that it apparently thought that Southam held that one "cannot find the current use as the highest and best use when there is no evidence of a market for that use", the Board went on to conclude that the "highest and best use for these Properties is the present, restricted use" (at para. 46): The Properties are unique because their current use is the only reasonably probable use, but this use does not

have a market on its own. The market for the restricted use is inexorably tied with the larger airport and the market for airports. But the Properties themselves are not bought and sold in the market, and therefore, they can not have a market value as stand alone Properties. To place a value on the Properties beyond a nominal value would simply be arbitrary and contrary to the requirement of market value in section 19. [17] The Board said that the parties "are essentially asking us to determine a proxy for market value" (at para. 47). It noted that the assessors attempted to do this by a "modified cost approach" (at para. 48) and Nav Canada relied upon sales of so-called comparable properties. [18] I focus on the Board's conclusion that the assessors' approach was flawed (at para. 49): [49] Given there is no market for the Properties, the Assessors' valuation is a determination of value in use or value to owner. As stated by Southam, supra., " determining the market value of the property based on its current use (where there is no market for that use) inevitably leads to determining the value of the current use to the owner, and not market value." [19] The Board finally concluded (at paras. 54 and 55): [54] In summary, we are asked to determine a market value for Properties that are not only special purpose properties, but entirely unique with no identifiable market and used by

a monopoly for a restricted use. A determination of assessed value in these unique circumstances begs for a legislated solution that does not require forcing appraisal principles and market concepts on properties that do not trade in the market. However, for the purposes of this appeal, we are required to determine market value for assessment purposes. Based on the evidence before us and our findings above, we find the market value, and assessed value, of the Properties should be nominal. [55] For Victoria, Penticton and Castlegar, we conclude a nominal assessed value of $10 for land and $10 for improvements. For Pitt Meadows, we conclude a nominal improvement value for the control tower and associated improvements of $10. IV. Stated Case [20] The Board stated a case to the Supreme Court of British Columbia. The judge's reasons are indexed as 2014 BCSC 2088. In submissions before that court, the assessors and the District of North Saanich essentially said that the Board erred in holding that the Properties could not be valued on the replacement cost approach; they said that this approach is the only appropriate valuation method in the circumstances. [21] The judge noted the appellants' reliance on Montreal v. Sun Life Assurance Co. of Canada, [1952] 2 D.L.R. 81 (J.C.P.C.) [Sun Life P.C.], affirming Sun Life Assurance Co. of Canada v. Montreal (City), [1950] S.C.R. 220 [Sun Life S.C.C.], and Ontario (Assessment Commissioner York) v. Office Specialty Ltd., [1975] 1 S.C.R.

677. He then proceeded to review Southam and Pacific Newspaper Group Inc. v. British Columbia (Assessor of Area No. 14 - Surrey/White Rock), 2008 BCCA 284 (also involving the Southam property), and among others, Gander International Airport Authority v. Gander (Town), 2011 NLCA 65. [22] The judge acknowledged that the standard of review of the Board's decision is reasonableness (at para. 72). [23] The judge concluded (at para. 74): [74] To the contrary, the Board's conclusion that the present use of the Properties is not only the highest and best use, but the only reasonably probable and legally permissible use, was entirely reasonable. Consideration of the practical impact of use restrictions on the marketability of the Properties was clearly required in this case, especially as the use in question is statutorily reserved to Nav Can alone. It was rational and well within the range of acceptable outcomes for the Board to conclude that restricted-use properties for which there is no external market have no value. This is particularly so in light of the binding legal principle from the Southam C.A. line of authorities, (sic) [24] The assessors and the District of North Saanich sought leave to appeal that decision. On various grounds they sought leave to put a number of questions of law to this Court. Leave was granted in respect of these questions: 1. Did the Board err in law by acting upon a view of the facts which could not be reasonably entertained by finding that the subject properties were rendered valueless by virtue of the Civil Air Navigation Services and Facility Agreement S C 1996, C 20, the Aviation Services and Facility agreement, and the Leases for Land and Space as they as they affect the Victoria airport properties?

2. Did the Board err in law in determining the market value of the subject properties in the context of the operation of the business carried on at those properties, rather than as stand alone properties which comprise the business of the occupier?

3. Did the Board err in law in determining the market value of the Victoria airport properties in the context of the operation of the business carried on at those properties, rather than as stand alone properties which comprise the business of the occupier?

4. Did the Board err in law by misinterpreting or misapplying Section 19(5) of the Assessment Act, RSBC 1996, c. 20 by its reliance on the Civil Air Navigation Services Commercialization Act, SC 1996, c. 20; the Aviation Services and Facility Agreement; and the Leases for Land and Space as a restriction on use affecting the value of the Victoria airport properties? [25] The essential issue before the Supreme Court on the stated case was neatly characterized by the judge (at para. 68): The availability of the cost approach to valuation of the Properties is at the heart of the dispute between the parties. [26] The resolution of this question was the entire focus of the appeal before us. In my view, this issue is subsumed in the four questions in respect of which leave was granted. I intend to focus on this issue in my analysis that follows. V. Discussion [27] It is not necessary to outline the parties' positions at length. The debate reduces to a consideration of two lines of authority: that pressed by the appellants beginning with Sun Life and that flowing from Southam (with a reference back in this regard to Fording Coal v. British Columbia (1996), 22 B.C.L.R. (3d) 178 (C.A.)). [28] We are sitting as a division of five because the correctness of the Court's decision in Southam is squarely before us. [29] I will deal with Southam presently but as I begin with Sun Life (and at

least one of the cases applied by the Privy Council in its disposition) and its progeny, it is helpful to note some of the critical reasoning in the Supreme Court and Court of Appeal decisions in Southam. [30] Southam concerned the printing plants of the Sun and Province newspapers located in Surrey, British Columbia. It was found as a fact that (at para. 3, Southam Inc. v. Assessor Area #14 - Surrey/White Rock, 2003 BCSC 676 [Southam S.C.]): [3] The current use of the property is so specialized that only the owner of the two major daily newspapers would use the property for that purpose. The current use is likely to continue. [31] It was accepted that if the property was no longer required by the owner for its then use and it was offered in the open market, it would fetch $25 million. The cost of construction, upon which the impugned assessment was based, was in excess of $40 million. [32] In Southam S.C., Sun Life was distinguished in part because (at para. 37): [37] In Sun Life, the analysis turned on how to apply a replacement cost approach. The parties had accepted the expense actually incurred as the groundwork upon which the replacement value was to be based. The case is of no assistance to the issue of the actual value of the property in the case at bar, because the alternative approach available here, of value to others, was not available in Sun Life. [33] Of Office

Specialty (which followed and applied Sun Life), Southam S.C. said at para. 42: [42] The Office Specialty case is difficult to reconcile with the concept of determining market value rather than the subjective value to the owner of the premises. Some of the language used in the case seems to suggest that for special use properties, it is acceptable to consider the value to the owner. [34] In Southam C.A., the Court said (at para. 22): [22] It seems to me that if the owner is to be considered a potential purchaser, there must be at least one other potential purchaser for the current use. Otherwise, there can be no competitive bidding and no market. That is this case: there is no market, other than the current owner, for the current use. Therefore, determining the market value of the property based on its current use inevitably leads to determining the value of the current use to the owner, and not market value. [35] I turn then to Sun Life. The reasons of Lord Porter in the Privy Council are of course the last word in the case, but those in the Supreme Court of Canada, especially in the judgment of Mr. Justice Taschereau, are instructive as well. [36] The case involved the assessment of the head office building of Sun Life Assurance Co. of Canada located in Montreal. [37] The legislation there mirrored that before the Court here - it required the assessors to record the "actual

value" of the lands and improvements. [38] Lord Porter described the building and its uses at the date of the assessment (at 83): So far as the building itself is concerned it is enough to say that it is an imposing erection, built largely without regard to cost and planned originally to house the whole of the Company's staff. Temporarily no doubt it was intended to let portions until the whole was required by the Company itself and parts of the building which were not immediately required by the respondents were in fact let to tenants as they were completed and made ready for occupation. As time went on, however, it was found more convenient to decentralize the management of the Company with the result that so far from increasing the space to be utilized by its staff it diminished the area for its own use and enlarged that let to others. At the relevant time, roughly about 60% was occupied by the respondents and about 40% let to tenants. According to the Company's witnesses this change in occupation was likely to become greater as time went on so that there would be a diminution in the ratio of space in use by its employees as compared with that let to tenants. [39] Mr. Justice Taschereau in the Supreme Court of Canada provided more detail of the "extras" incorporated into the building (at 238-239): This building has been rightly described as monumental and unique. Its

external appearance, with its ornamental columns and balustrades, its granite walls, bronze doors, the lavishness of the interior decorations, the unsparing use of marble and other expensive materials, the vastness of its rooms, its cafeterias, gymnasiums, elevators, etc., all contribute to make of this building one of the most sumptuous in the City of Montreal. For the same reasons, however, it is undoubtedly one of the least economical office buildings, and at the same time, one on which it is not easy to place a municipal valuation, and give to it a "real" or "actual" value. [40] Lord Porter reviewed a memorandum adopted by the city's assessors for the assessment of large properties such as office buildings and the like. The Sun Life building fell into the third category of building (at 86-88): (3) Properties that are partly occupied by their owners and partly rented; "It would seem that some consideration should be given to the rental value in these cases, so that the replacement factor should be weighted somewhere between 50 and 100 per cent., and the commercial value factor make up the difference between 50 per cent. and zero. No hard and fast rule can be given for the division of weight in these factors, as it will depend on the proportion owner-occupied, the extent to which the commercial features of the building have been sacrificed to the main design with a view to

the future complete use of the building by the owner, or the enhanced prestige of an elaborate and expensive construction. Each property will have to be considered on its merits within the limits outlined above." [41] Lord Porter accepted the approach to value adopted by the assessors, that is (at 88): " the value should be based upon the price which a person who is not obliged to sell could obtain from a buyer who is not obliged to buy". [42] It is the principle of the "willing buyer and willing seller". Lord Porter said of this (at 88): This is the ideal approach but it is difficult to apply where the building to be assessed is of a unique or exceptional kind, erected for a particular purpose and not very suitable for sale or letting. [43] It was agreed by all courts in Sun Life that there were five ways by which market value might be ascertained (Sun Life P.C. at 89): (a) A recent free sale of the property itself where neither the conditions of the property nor the market have since changed; (b) recent free sales of identical properties in the same neighbourhood and market; (c) recent free sales of comparable properties; (d) the price which the revenue producing possibilities of the property will command; (e) the depreciated replacement cost. [44] In the case of the Sun Life building, it was the last two factors that were relevant. [45] Lord Porter noted the city's

contention that in the case of the Sun Life building, built for the company's own use and not for resale or letting generally, no question of willing buyer or seller arose. [46] Lord Porter then stated in a paragraph very frequently cited since (at 90): Their Lordships would agree that where no sale is contemplated and indeed any sale would be difficult what has been called the higgling of the market is not an element of much if any consequence, but nevertheless the ultimate aim is to find the exchange value of the property, i.e., the price at which the property is salable. In reaching their result the appointed Tribunal must take into account not only the amount which a buyer would give but also the sum at which the owner would sell. What that sum would be is, as the authorities have pointed out, best ascertained either by regarding him as one of the possible purchasers or by estimating what he would be willing to expend on a building to replace that which is being valued. But the owner must be regarded like any other purchaser and the price he would give calculated not upon any subjective value to him but upon ordinary principles, i.e., what he would be prepared to pay, if he was entering the market, for a building to meet his requirements, or would be willing to expend in erecting a building in place of that which is being assessed. [47] This is the critical paragraph in the

judgment and the courts in Southam erred by not applying it. [48] The ultimate aim is to find the "exchange value of the property". In a situation where "the higgling [that is "haggling"] of the market is not an element of much if any consequence", that is where, in reality, there are no buyers and sellers, one must take into account the sum that the owner would pay. [49] One must regard the owner as one of the possible purchasers, or estimate what the owner would be willing to spend on a building to replace that which is being valued. [50] The error in Southam was the insistence that without a second potential purchaser, one would be applying a prohibited methodology: valuing the property according to its value to the owner. [51] This requirement - that before one may employ the replacement cost approach, before one may consider the owner as a potential purchaser, "there must be at least one other potential purchaser for the current use" - is not a proper reading of Sun Life or the cases that follow it. It seeks to impose a reality on what is in essence a notional or imaginary market conjured by the valuator to create a proxy for a competitive market. It is an imaginary market. That is exactly how it was explained by Mr. Justice Taschereau in Sun Life S.C.C. at 244-245: The "real value" is the "market value" or the "value in exchange", and in order to ascertain it, one must

necessarily, even if there has been no sale of the building, try and find what would be the price of the building in the open market. The rule is not that because there is no buyer and no seller, as in the present case, the well-known theory of "willing buyer and willing seller" does not apply. We must ask ourselves this question: What would occur if there was a buyer and a seller? In Lacoste v. Cedar Rapids (1), Lord Warrington speaking for the Judicial Committee said at page 285: But the proper amount to be awarded in such a case cannot be fixed with mathematical certainty but must be largely a matter of conjecture. It is the price likely to be obtained at an imaginary sale, the bidders at which are assumed to ignore the fact that a definite scheme of exploitation has been formed and compulsory powers obtained for carrying it into effect. [Emphasis added.] [52] Then it is said in Southam that the second potential purchaser is needed to avoid a "value to the owner" valuation. It is true that one must avoid valuing a property for assessment purposes on the basis of any special value or special adaptability to the owner just as in the obverse case of an expropriation one must avoid compensating the owner on the basis of the value of the property to the taker who needs it to implement its scheme: Lacoste v. Cedar Rapids, BR (1929) 47 K.B. 271 at 285 (quoted above in Sun Life

S.C.C.). [53] But this concern is addressed in Sun Life, not by a requirement that in reality there be a second potential purchaser, but by regarding the owner in Lord Porter's words above: like any other purchaser and the price he would give calculated not upon any subjective value to him but upon ordinary principles [Emphasis added.] [54] One must ignore the subjective value, the special value to the owner in this exercise, and value the property in the hands of the objective owner. That is what the Privy Council did in the result in Sun Life by making "an allowance for the lessening of replacement value because the building was built of unnecessarily expensive materials with an excess of decoration and without regard to its letting value" (Sun Life P.C. headnote). [55] The courts in Southam conflate treating the owner as a potential purchaser (in the "only one potential purchaser" scenario) with improperly valuing the lands in the hands of that owner. This misunderstands the nature of the prohibited assessment methodology. [56] In this context, "value to the owner" has a much narrower meaning than these courts seem to imagine. One must avoid including in the assessment special value to the owner. In the words of the Supreme Court of Canada in National Capital Commission v. Hobbs, [1970] S.C.R. 337 (at 340), special value to the owner is that "beyond what it would have in

similar use by somebody else". This was said in an expropriation case where proper compensation methodology requires the inclusion of "special value to the owner" but its meaning here, for the purposes of excluding special value from a property tax assessment, is the same. [57] I refer to this Court's decision in Provincial Assessors of Comox, Cowichan & Nanaimo v. Crown Zellerbach Canada Ltd. et al, [1963] 39 D.L.R. (2d) 381. Mr. Justice Wilson made this point by saying (at 403) of proper assessment methodology: In no case has it been interpreted as permitting the consideration of value to a particular owner, as distinguished from any owner. [58] To the same effect is this Court's decision in Wosk's Ltd. v. British Columbia (Assessor of Area No. 16 - Chilliwack), 1990 CarswellBC 1454 (C.A.). Mr. Justice Taylor said of the concept that for assessment valuation purposes, the owner must be regarded as a potential "purchaser" (at para. 12): The "actual" (or "market") valuation theory used for real property assessment purposes requires that the market to be considered will, in the sense described, include present owners but still exclude any element of "special value" peculiar to particular owners. The theory, while not always easy to apply, must be applied in a practical way which will reflect the realities of the marketplace. [59] As I have said one must posit the objective owner

not the subjective one. [60] This Court's decision in Bishop of Victoria v. Victoria, [1933] 4 D.L.R. 524, was considered in Sun Life. That was a case involving the assessment of a parochial school built at a cost of $58,425. However, it was conceded that if the Bishop were forced to sell the property, it would command a much lower price as an apartment house use. The statute, as here, called for an assessment at "actual value". Chief Justice Macdonald discussed "methods of appraisement". He said this (at 527-528): One cannot doubt that the assessor, considering the actual value of the property might very well say: "Respondent has built this property for a special purpose; it is a permanent purpose. He has considered the cost before building it and has agreed to pay $58,425 for it. There are no circumstances local or otherwise which would make that property less valuable to the owner than the price paid for it and while no outsider would be willing to pay that cost having no use for the building, except as an apartment-house, the actual value, to the owner who has use for it and who has built it and paid for it the price above mentioned and will continue to use it for an indefinite time, may be exactly what it has cost, less any depreciation since its construction." This, I think, would be something that ought to appeal to the valuator taken in connection with any other

circumstances which might affect the value including its market value. He ought not to accept the selling value at a forced sale or the selling value at an open sale as the basis of assessment to the exclusion of all other relevant facts any more than he should accept the cost of construction as the actual value to the exclusion of all other circumstances. The value would depend upon his own judgment after having taken all circumstances into consideration [61] It is important to our discussion here to note that the Court treated the owner as a potential purchaser and that the valuator ought to consider (among other considerations) "what the property cost those who own it, and who intended to use it and continue to use it for the very purpose for which it was built" (at 527). [62] It will be recalled that in Southam both courts were of the view that Sun Life was distinguishable because in Southam there was a potential market at $25 million, a much lower sum than a valuation based on replacement cost. In Southam S.C. the Court said Sun Life was "of no assistance" (at para. 37): because the alternative approach available here, of value to others, was not available in Sun Life. With respect, this is not so and it is not a proper basis upon which to distinguish Sun Life. [63] There indeed was alternative "value to others" in Sun Life. It was the value based on the rental rates to

tenants other than the owner. That was the basis of valuation for which the owner in Sun Life argued, presumably because it would have lowered the valuation. And as we have seen in Bishop of Victoria, there very definitely was an alternative market, that for an apartment house use leading to a value much lower than one based on replacement cost. But total reliance on the alternative market to the exclusion of considering replacement cost was found to be in error. [64] Sun Life is not distinguishable on this basis. I would interject here by observing the irony inherent in this supposed distinction of Sun Life from the case in Southam. If indeed an alternative market, a market of "value to others" was not available in Sun Life, or indeed in Bishop of Victoria, which was relied on in Sun Life, then those cases would be stark and binding authority for the use of replacement cost as a valuation methodology in the "no other purchaser but the owner" scenario. Make no mistake, they are, but factually they cannot be so distinguished from Southam. [65] It is not the case, as Southam suggests, that in the absence of a second potential purchaser considering the owner as a potential purchaser is to improperly value the land in his hands. This is avoided by looking at the owner as an objective purchaser, uninfluenced by his subjective view of the property's value, a view based on

considerations special to him. These views are confirmed by reference to Office Specialty, a case much relied upon by the appellants before us. [66] The object of the assessment in Office Specialty was a purpose-built office/manufacturing building in a small Ontario town. While it was wholly appropriate to the uses of the owner, if offered in the market it would have attracted offers much below replacement cost. [67] The Ontario Municipal Board stated the issue so (at 680): The basic issue here is whether, in determining the assessment according to market value, it is open to the assessor to arrive at that value by using a manual of rates to determine the depreciated replacement cost, where the property, if exposed in the market and an actual sale consummated, would most likely bring a sum considerably less than this depreciated replacement cost. [68] The Municipal Board continued (at 680): However, the ratepayer was using the property to its fullest potential and from the evidence presented, the light manufacturing business carried on appears to be a viable efficient operation. The company must be included as a potential purchaser for such property if it were offered for sale, which would have a bearing on the determination of the price that a willing purchaser would pay for the subject lands if offered in the open market. The open market as envisaged by the act means a normal

market one with sufficient buyers and sellers to produce an atmosphere of competition. Where for one reason or another the competitive market is not available, the assessor must arrive at the assessment for the property by some other reasonable method. In this particular case, the replacement cost method was selected as a suitable procedure. [69] Mr. Justice Judson writing for the Court agreed (at 681): My opinion is that the Municipal Board was right in holding that the evidence before it proved that the market data method of valuation in this particular case could not be used to determine actual value or market value. The Court of Appeal held the contrary opinion. I cannot accept that view of the evidence. The witnesses stated plainly that no purchasers for this building for its present use would likely be found. This was entirely attributable to the location of the building in a small village such as Holland Landing. This building is not going to be put on the market. It is thoroughly suitable for the business being carried on and it is significant that it was being extended by its owner while these appeals were going on. [70] The judge continued (at 682): How does an assessor determine "actual" or "market" value on facts such as we have in the present case? This is a modern, standard, one-storey building, badly located for a general purchaser but entirely suitable and

satisfactory to its owner. It is not for sale and it is not likely that it will be offered for sale. I think that in ascertaining "actual" or "market" value, an assessor has to regard the owner as a possible purchaser or estimate what he would expend on a building to replace that which is being valued. [71] And the judge then quoted as authority the "higgling of the market" paragraph in Sun Life. [72] Again, contrary to the view expressed in Southam, this was a case (binding on this Court) where there was a potential purchaser at a much lower price but nevertheless "actual value" was to be determined by having regard to: the owner as a possible purchaser or estimate what he would expend on a building to replace that which is being valued. [73] Sun Life was again applied by the Supreme Court of Canada in Golden Eagle Canada Ltd. v. St‑Romuald d'Etchemin (City), [1977] 2 S.C.R.

1090. The assessment there was of five storage tanks under construction in a refinery operation. The owner argued that until the tanks were completed and in operation, their value was nil. The Court relying on Sun Life said (at 1095): Appellant itself committed the error in law when it forgot that in all cases of construction for special purposes the assessor must necessarily calculate the replacement value in order to determine the real value, and in determining the theoretical market value must consider the owner as a possible purchaser. [74] Mr. Justice de Grandpré continued (at 1096): I do not hesitate to adopt the following remarks of Bélanger J.A.: [TRANSLATION] The legal meaning of the expression "real value" and the principles for determining it have now been clearly established in the case law: when a property is of a type the sale of which is difficult to imagine, the ultimate goal must still be to find the market value of the property; consideration must be given not only to the price which a purchaser would pay, but also to that at which the owner would sell, and from this point of view the owner may be considered as any other possible purchaser, and the price which he would offer may be calculated not on a subjective value, but on an objective value, according to the ordinary principles of a property replacing the one to be valued. The property must be valued in

the condition in which it is. [75] A leading case in this Court following Sun Life and Office Specialty is Crown Forest Industries Ltd. v. British Columbia (Assessor of Area No. 6 - Courtenay) (1987), 10 B.C.L.R. (2d) 145. There the Court was considering the assessment of the Elk Falls pulp and paper complex. Mr. Justice Esson criticized the judge below for saying in this case that the "cost approach is nothing more than a theory without any evidentiary foundation" (at 152): That is not merely a finding that the Board erred in law in having regard to replacement cost to the exclusion of other methods of valuation. It goes far beyond that to hold that it was not open to the board to have regard to replacement cost in this case. That conclusion, in my respectful view, runs counter not only to valuation theory but to generations of decisions binding upon us. The basis for accepting replacement cost as a measure of actual or market value is not one which rests upon a different evidentiary foundation in each case. It is, rather, a logical assumption based on general experience. Mr. Johnstone, director of appraisal services to the British Columbia Assessment Authority, put it this way: That approach is based on the premise that cost equals value and if it is found at the end of the exercise that that is not so a correction can be made within the cost approach. [76] Mr. Justice Esson

continued (at 153‑154): Facilities such as the Elk Falls Complex are rarely, if ever, the subject of sale on the open market. For that reason, such assets have generally been assessed on the basis of replacement cost. MacMillan Bloedel Ltd. v. Assessor of Area 7 - Sunshine Coast, [1985] B.C.W.L.D. 2897, B.C.S.C., B.C. Stated Case 206, 15th July 1985 (not yet reported), p. 1151, is a decision of McKay J., concerning the assessment of the mill at Powell River for the same period as is in issue in this case. At p. 1152 McKay J. observed: The determination of actual value is anything but an exact science and the methods used will vary according to the circumstances of any given appraisal. It is usual, in the case of mills of the type under consideration, to use a depreciated replacement cost analysis (the "cost approach") because of the scarcity of comparable sales. That is, in my view, an entirely correct statement of the position and is fully in accord with the earlier authorities. [77] While the appellants here relied especially on Office Specialty (also applied in Crown Forest), the respondents find support in this Court's decision in Fording Coal. [78] In my view, Fording Coal is entirely distinguishable from cases like Sun Life et al. and the case at bar. Indeed, the Court in Fording Coal itself said Office Specialty and Crown Forest contained points of law not disputed "in

this case", that "simply do not apply to the circumstances here as disclosed in the evidence" (at para. 15). [79] Importantly, Fording Coal did not involve the Assessment Act; it concerned a tax assessment under the Property Transfer Tax Act, R.S.B.C. 1996, c. 378. [80] That Act had a precise definition of "fair market value" as "the amount that would have been paid for the fee simple interest in the land had it been sold in the open market by a willing seller to a willing purchaser." It will be seen that unlike the Assessment Act, this legislation did not contemplate what I will term "proxies for market value" (that is market value in the context of the "willing buyer/willing seller") as listed in s. 19(3) of the Assessment Act, viz: 19(3) In determining actual value, the assessor may, except where this Act has a different requirement, give consideration to the following: (c) original cost; (d) replacement cost; (e) revenue or rental value; [81] This Court adopted the reasoning of Mr. Justice Mackenzie in the Supreme Court (at para. 10): [10] However Mr. Justice Mackenzie noted that there is a precise definition of "fair market value" in the Property Transfer Tax Act. That definition in its relevant aspects sets the "fair market value" as "the amount that would have been paid for the fee simple interest in the land had it been sold...in the open market by a willing seller to a

willing purchaser." Mr. Justice Mackenzie decided that he was required to apply the test set out in that definition. He noted that the provisions of s. 26.1 of the Assessment Act which require that the assessed value of industrial improvements be determined on the basis of cost less depreciation did not appear in the Property Transfer Tax Act. So applying the statutory test relating to a willing seller and a willing buyer in the open market Mr. Justice Mackenzie stated his reasoning and conclusion in this way: The test set by the statutory definition is explicitly limited to the market value as between a willing seller and willing purchaser. The value to Fording resulting from the usefulness of these improvements to its mine is a special value to this particular purchaser not shared by any other prospective purchaser (who would not be presumed to have Fording's coal nearby). Nor would the Crown or any other willing vendor of this site be presumed to have a large source of coal nearby to give the improvements any going concern market value as part of an active mine. The site is isolated and remote. There is no suggestion that these improvements would have an alternative use to any prospective purchaser. The market value of these improvements, as distinct from their special value to Fording as part of the going concern of its mine which extends beyond this site, is limited to

their value without a mine. The realistic conclusion is that the fair market value of the improvements is negligible. [Emphasis added.] [82] What Fording Coal is helpful in illustrating, however, is what is actually meant by "value to the owner" and that is what Mr. Justice Mackenzie identified as: The value to Fording resulting from the usefulness of these improvements to its mine is a special value to this particular purchaser not shared by any other prospective purchaser (who would not be presumed to have Fording's Coal nearby). [83] Again, I repeat: this was the special value that must be excluded in a valuation for assessment purposes. Not to do so is to invoke the so‑called "blackmail argument" per O'Halloran J.A. in C.N.R. v. Vancouver, [1950] 4 D.L.R. 807 (B.C.C.A.) (at 811-812): To introduce the peculiar value to the owner as a factor in assessment value is to invoke what Lord Halsbury called the "blackmail" argument, and see Great Central R. Co. v. Banbury Union, [1909] A.C. 78 (considered in East London Ry. Joint Committee v. Greenwich Union Assessment Committee, [1913] 1 K.B. 612 at p. 623, and Great Western Ry. Co. v. Hammer-smith Assessment Committee, [1916] 1 A.C. 23 at pp. 34, 44, 46, 55). The Banbury Union case concerned the assessment of a section of railway within a parish nine miles long linking two great railway systems. Lord Dunedin said at pp. 94‑5: "The

assessing authority cannot, I think, be heard to say, 'All your Great Western through traffic is dependent on this piece of line; therefore it has an enhanced value because you could not do without it.' The same might be said as regards each and every isolated mile of line over which the through traffic goes. It is really what Lord Halsbury in one of the cases calls the blackmailing argument. You may spoil the ship for want of a pennyworth of tar. A prudent shipowner would pay a great deal not to spoil the ship. Yet to the hypothetical buyer the value of the tar still remains a penny." [84] Mr. Justice O'Halloran referred above to the Banbury Union case. It is an instructive authority. There, the House of Lords was considering the assessment for property tax purposes of a railway line passing through a particular parish. [85] Lord Dunedin explained that in determining the value, it must be assumed that the land is being used for the purposes of a railway, not just as an empty piece of land in the parish (at 89): The true question is, therefore, what is the value of this bit of railway line to those who wish to possess bits of railway line, that is, to persons who have themselves railway lines elsewhere in connection with which they can utilize this bit? [86] Lord Dunedin looked to earlier authorities for his conclusion that land retains value for assessment purposes even if the

current owner makes no profits, or if the current owner is the only one who would be interested in the land (at 94): rateable value is not destroyed either because (1.) there is no profit de facto derived from the land, or (2.) the occupants were disabled from making profits, or (3.) there is no one in the world, except the actual occupant, who, if the land as occupied were given up, would have any possible use for it. But while they thus settle that the absence of all possible competition does not destroy the value of a subject, they do not seem to me for one moment to infringe the proposition that the existence of competition may enhance the value of a subject. [87] Where the only evidence available is the experience of the current owner, that owner is to be considered as a potential purchaser. However not all of the owner's particular circumstances are to be considered (at 95): Indeed, though you may certainly take the existing occupant as one of the possible takers, and as thus, so to speak, competing with the hypothetical tenant, I am not satisfied that you are entitled to assume that the existing occupier is to be hampered by each and every one of his present conditions. I think that is what Mellor J. meant in the Llantrissant case when he said, "Some difficulties have been introduced by confusing the hypothetical tenant with the actual tenant; it is not because a

particular tenant will give a large sum as rent that that is any criterion of the rateable value." [88] This is clear authority for the view that in the scenario of "no second purchaser" the current owner (objectively viewed) is to be considered as a potential purchaser. [89] Before I leave the cases I would say something of the decision in Gander International Airport Authority. There, the assessment concerned the well-known airport which since 2001 has apparently been "a money losing airport". [90] The majority in the Newfoundland and Labrador Court of Appeal (for a five‑judge division) upheld the trial judge's rejection of the cost approach as an appropriate method of assessing the property. The majority accepted that an alternate use of the lands was impossible and concluded (at para. 37): [37] In the circumstances, where an alternate use is not possible, it could not be said that, if sold on the open market, a willing buyer would offer more than a nominal amount, determined by the assessors here to be one dollar. Assessment in future years may, of course, change should the airport become financially viable or freed from the restrictions that applied as of the base date with the result that a market with more than a nominal value could be identified under section 17 of the Assessment Act. [91] Mr. Justice Barry, joined by Chief Justice Green, referred to 3163083 Canada Ltd.

v. St. John's (City), 2005 NLCA 76 (the "Labatt" decision), which followed Southam in concluding that there had to be a market for the property in its present use or there can be no market value derived from that use. [92] Mr. Justice Barry inferred that there was such a market in respect of the Gander Airport (at para. 48): [48] It is a reasonable, indeed inescapable, inference that, had the Authority defaulted on its covenant to use the property as an international airport, the government of Canada would have repossessed the Airport land and facilities and they would have been made available to a new entity for use as an international airport. In those hypothetical circumstances, the buildings, land and other facilities in question would have considerable value, specifically to the entity assuming responsibility for the operation of an international airport at Gander. That entity would have to construct new facilities to operate an airport if the Authority's property were not made available to it. It is appropriate, therefore, to accept the cost of constructing appropriate new facilities as the value of the Authority property. This would represent not just the value to the owner but the value in exchange, since any new entity mandated to operate the Airport would be bidding for the property, should the Authority itself decide it would no longer operate at Gander. The new

entity would be the willing purchaser creating the market. [93] It is not clear if the Board considered this possibility in the case of Nav Canada. That said, Mr. Justice Barry proceeded to his alternate conclusion (at paras. 52 and 53): [52] As noted by the Trial Judge, Gander Airport fell within the National Airports Policy of the Government of Canada and that Government had decided an international airport should continue to be operated there. This is sufficient to distinguish Labatt and the public amenity cases cited by the Authority. However, if this is not a valid distinction, I respectfully decline to follow Labatt and those public amenity cases and, instead, follow Sun Life and York Assessment Office, Office Specialty Ltd. v. Ontario Regional Assessment Commissioner, Region No. 14, [1975] 1 S.C.R. 677 (S.C.C.), which applied the Sun Life principle that, to find the exchange value of a property, an assessor must take into account not only the amount which a buyer would give but also the sum at which the owner would sell. What that sum would be is best ascertained by regarding the owner as one of the possible purchasers or by estimating what the owner would be willing to expend on the building to replace that which is being valued, regarding the owner like any other purchaser and avoiding subjective valuation. [53] These cases are binding on this Court and require that we

conclude a market existed, in the circumstances, for Gander Airport and that the best approach for determining fair market value of the improvements on Airport land is the replacement cost approach, with appropriate adjustments to allow for physical deterioration, functional depreciation (obsolescence) and external depreciation (negative influences outside the building). [94] I respectfully agree with Barry J.A. and Green C.J.N.L.: Sun Life and Office Specialty are binding on this Court and an accepted approach to valuation is to consider the replacement cost with appropriate adjustments in place in cases like that at bar. [95] With these observations made, I turn to the Board's decision here. In my respectful view Southam was wrongly decided. As it relied on Southam and cases which followed Southam, it cannot be said, in light of my conclusion, that the Board's decision was reasonable. It could not be because it wrongly ignores "replacement cost" (always with appropriate adjustments) as a legitimate approach in valuing Nav Canada's lands and improvements. [96] Underlying the Board's decision is a palpable sense of frustration: the Board is asked to determine an essentially unresolvable question (at para. 41). A determination of assessed value in these unique circumstances begs for a legislative solution that does not require forcing appraisal principles and market concepts on

properties that do not trade in the market (at para. 54). [97] With respect, it is the Board's responsibility to resolve difficult questions of valuation by reference to the Act, in particular s. 19(3), and the case law which has addressed the valuation of unique properties as that case law has been properly interpreted and applied. In fairness to the Board, I recognize that if I am correct, the Board here was labouring under a line of authority beginning with Southam which has misdirected it. [98] Also underlying the Board's decision, and especially the position advanced by Nav Canada, is the view that lands and improvements, to borrow my opening paragraph, "that are dedicated to a single purpose, entirely unique, with no identifiable market and used by a monopoly for the restricted use" are intuitively of no "actual value". [99] Indeed, the Board said that to place a value on them, beyond a nominal value, "would simply be arbitrary and contrary to the requirement of market value in s. 19". This is wrong. As Lord Dunedin said in Banbury Union, as quoted earlier: rateable value is not destroyed either because (1.) there is no profit de facto derived from the land, or (2.) the occupants were disabled from making profits, or (3.) there is no one in the world, except the actual occupant, who, if the land as occupied were given up, would have any possible use for it. [100]

Similarly, it is wrong to say as the Board did at para. 40 of its reasons: A requirement for a conclusion of market value is a competitive and open market for the property being valued. The cases I have noted and stressed belie this position. [101] The Act, in particular in subsection 19(3) and the cases properly interpreted provide the assessor with the tools to ascertain "actual value" in such circumstances. Of central importance is that the Act requires the assessor and the Board to utilize these tools and make that determination. [102] To Nav Canada I would say that it is using the noted lands and improvements for its "business" (it charges fees to users of its services); the lands and improvements are totally appropriate for that purpose. Those lands and improvements have a "rateable value" in assessment law that is not destroyed because of Nav Canada's unique operation or the fact that it may be the only entity with any possible use for these lands and improvements. And in determining that value in circumstances like Nav Canada's, as Mr. Justice Esson said in Crown Forest, the cost approach is a proper one (at 161): in many cases, the most appropriate objective test to determine whether the cost approach is appropriate will be whether the owner is using the building or plant for the purposes for which it was built. [103] As I have said, it is certainly the case here that

Nav Canada is "using the building or plant for the purposes for which it was built." VI. Disposition [104] For the reasons I have sought to develop, I would allow the appeals and answer the first three questions posed above "yes". [105] The fourth question for which leave was granted is: Did the Board err in law by misinterpreting or misapplying Section 19(5) of the Assessment Act, RSBC 1996, c. 20 by its reliance on the Civil Air Navigation Services Commercialization Act, SC 1996, c. 20; the Aviation Services and Facility Agreement; and the Leases for Land and Space as a restriction on use affecting the value of the Victoria airport properties? [106] I would answer "yes" to this question as well. By reason of its improper rejection of the cost approach to valuation that answer is inevitable. However, I would not wish to suggest that it is wrong for the Board to consider these restrictions on use under s. 19(5) in a valuation properly conducted under the Act. [107] I would remit the entire matter with these reasons to the Board. "The Honourable Chief Justice Bauman" I AGREE: "The Honourable Madam Justice Kirkpatrick" I AGREE: "The Honourable Mr. Justice Frankel" I AGREE: "The Honourable Mr. Justice Groberman" I AGREE: "The Honourable Mr. Justice Willcock"