Belmont Nominee Ltd. v. Vancouver (City)

2021 BCSC 2492 Belmont Nominee Ltd. v. Vancouver (City)

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Belmont Nominee Ltd. v. Vancouver (City), 2021 BCSC 2492 Date: 20211222 Docket: S236019 Registry: New Westminster Between: Belmont Nominee Ltd. Petitioner And The City of Vancouver, the Vacancy Tax Review Officer and the Vacancy Tax Review Panel Respondents Before: The Honourable Justice Winteringham Reasons for Judgment Counsel for the Petitioner: J.A. Nitikman, Q.C. F. Chang Counsel for the Respondents: I. Dixon Place and Date of Hearing: New Westminster, B.C. September 14, 2021 Vancouver, B.C. October 29, 2021 Place and Date of Judgment: New Westminster, B.C. December 22, 2021 Table of Contents I. OVERVIEW.. 3 II. VACANCY TAX BY-LAW.. 4 III. BACKGROUND FACTS. 7 A. 2018 Vacancy Tax assessment 8 B. Decision of the Review Officer 9 C. Decision of the Review Panel 12 IV. PARTIES' POSITIONS. 16 V. ANALYSIS. 18 VI. CONCLUSION/ORDER. 23 I. OVERVIEW [1] For many years, the City of Vancouver ("City") has been dealing with concerns about housing availability. In 2016, as one method of addressing the housing shortage, the City implemented a vacancy tax on properties left vacant for a period of time, subject to stipulated exemptions, including for those properties undergoing redevelopment ("Vacancy Tax"). [2] The interpretation of one of those exemptions is at issue in this petition. [3] For the 2018 taxation year, the City assessed the

petitioner, Belmont Nominee Ltd. ("Belmont") just over $344,000 for the Vacancy Tax. [4] Belmont failed to persuade the vacancy tax review officer ("Review Officer") or the subsequent vacancy tax review panel ("Review Panel") that it should qualify for an exemption even though redevelopment of the property was underway. [5] Belmont contends the decisions were unreasonable and seeks an order quashing the decisions and a declaratory order that the property qualified for the exemption. Alternatively, Belmont seeks an order returning the matter for reconsideration to a different Review Officer. [6] The parties agree that Belmont bears the burden of demonstrating that the decisions were unreasonable in accordance with Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 [Vavilov]. Pursuant to Vavilov, for a decision to be reasonable, it must bear "the hallmarks of reasonableness - justification, transparency and intelligibility" (para. 99). A decision will be unreasonable when it is "in some respect untenable in light of the relevant factual and legal constraints that bear on it" (para. 101). [7] I start with the statutory regime governing the City's authority to assess the Vacancy Tax, the pertinent exemptions and the reviews available for the property owner who disputes a Vacancy Tax assessment. Next, I will turn to the circumstances presented in this petition

and the decisions now under review. I will then consider the legal authorities regarding statutory interpretation and this court's review of decisions of administrative decision-makers such as those at issue here. These reasons will end with the analysis of the legal issues governing this dispute. II. VACANCY TAX BY-LAW [8] In 2016, the City evaluated a reported shortage in housing. The City determined that one method of addressing the housing shortage was to impose a tax on vacant homes requiring the homeowners either to live in their homes for at least six months each year or rent their homes to others. [9] In November 2016, the City enacted the Vacancy Tax By-law, No. 11674 (the "By-law"). The By-law is the legal basis for the imposition of the Vacancy Tax and outlines how that tax will be administered. The first year in which the Vacancy Tax was effective was 2017. The By-law itself has been amended on a number of occasions. In these reasons, all references are to the provisions of the By-law as they were in force at the relevant time. [10] The By-law imposes a tax on every Class 1 residential property within the City. If the property owner meets certain criteria, s. 3 of the By-law allows a property owner to claim an exemption from the Vacancy Tax. [11] Pursuant to the By-law, all property owners in the City are required to make a property status declaration for their

property by February 2 of the following year, which would include any claim to an exemption. [12] At issue in this petition is the exemption at s. 3.2(b) of the By-law. Several iterations of the By-law were referred to during the hearing of the petition. The version in effect for the 2018 taxation year (and the version governing this dispute) provides as follows: 3.2 A vacancy tax is not payable under this by-law for a parcel of residential property if the residential property was unoccupied for more than six months during the vacancy reference period in order to do one or more of the following: (a) redevelop or safely carry out major renovations to the property: i. for which permits have been issued by the City, and ii. which, in the opinion of the Chief Building Official, are being carried out diligently and without unnecessary delay, or; (b) carry out either redevelopment or initial development of residential property that is unimproved with any dwelling units, or the rehabilitation and conservation of heritage property: i. for which a complete rezoning enquiry or application, development permit application or heritage alteration permit application has been submitted by or on behalf of the registered owner and is under review by the City, and ii. which in the opinion of the Director of Development Services, is being diligently pursued and without unnecessary delay, or; (c)

carry out either redevelopment or initial development of a parcel of residential property which is unimproved with any dwelling units and is part of a phased development which either: i. has not been rezoned, where a complete rezoning enquiry or rezoning application for at least one of the parcels of residential property which comprise the phased development has been submitted by or on behalf of the registered owner and is under review by the City during the vacancy reference period, or ii. has been rezoned, where either: (A) a complete development permit application has been submitted for at least one parcel of residential property which is part of the phased development and is under review by the City during the vacancy reference period; (B) a development permit has been issued by the City for at least one parcel of residential property which is part of the phased development and work under the development permit is, in the opinion of the Director of Development Services, being diligently pursued and without unnecessary delay. [13] The original version of the By-law did not contain the exemption in s. 3.2(b). The By-law was amended by s. 5 of By-law 11855, effective July 11, 2017. [14] The City enacted s. 3.2(b) after considering an Administrative Report dated June 20, 2017 setting out the basis for the new provision. After explaining the rationale for s. 3.2(a), the

Administrative Report states the following: in the case of vacant unimproved lands that have no dwellings on-site and whose owners are diligently proceeding with a .development permit application, it is not possible for the property to be occupied in accordance with the requirements of the by-law. Therefore, staff recommend an amendment to the Vacancy Tax By-Law to exempt vacant lands that are not improved with any dwelling units if the owner has submitted a complete development permit application to create housing supply, provided that the application is being diligently pursued by the applicant. Vacant unimproved properties that are not in the development review process will continue to attract the [empty housing tax] as an incentive for owners to move forward with the creation of housing supply. [15] I pause to address an evidentiary issue that arose at the continuation of the hearing of the petition when the City tendered the current version of the Vacancy Tax By-law. The By-law has been amended to add a new s. 3.9. [16] Belmont objects to the new evidence and submits the court should not consider it. [17] Having considered the objection and the record that was before the Review Officer and Review Panel, I agree with Belmont's objection. That is, the new evidence was not before the Review Officer or Review Panel and does not form part of the underlying record. In addition,

in this interpretation exercise, I have not considered the amendments because I do not have the views of the original decision-makers on the role the new evidence might play in their interpretation of s. 3.2(b). [18] I turn then to describe the process available for those seeking to challenge a Vacancy Tax assessment. [19] Section 6 of the By-law, entitled "Complaints and Review Process", provides for a process allowing property owners to challenge the imposition of the Vacancy Tax. [20] Pursuant to s. 6 of the By-law, the first stage of that process is the property owner filing a complaint to a Review Officer. A Review Officer is a person appointed by the City Council to administer complaints made in accordance with the vacancy tax review provisions of the By-law. The Review Officer reviews the submission of the affected taxpayer and determines whether there is a ground for the complaint as set out in s. 6.2, namely: a) an error or omission on the part of the City resulted in the imposition of the Vacancy Tax; or b) an error or omission on the part of the registered owner in completing the property status declaration resulted in the imposition of the Vacancy Tax. [21] Upon receiving a notice of complaint, the Review Officer may require, under s. 6.5 of the By-law, that the registered owner provide any further information or evidence relevant to the complaint. [22] Pursuant to

s. 6.10 of the By-law, a registered owner who has received an unfavourable determination by the Review Officer may request a review by the Review Panel. Section 6.12 of the By-law sets out the requirements for any review request, including that it must set out the grounds for the request and provide any further supplementary information and evidence previously provided to the Review Officer to substantiate the reasons for the subsequent review. III. BACKGROUND FACTS [23] On July 28, 2000, Belmont was registered in the Land Title Office as the owner of the property at 4769 Belmont Avenue, Vancouver, BC ("Property"). The Property was then and is now bare land. [24] Belmont paid the Vacancy Tax for 2017 and does not dispute it. A. 2018 Vacancy Tax assessment [25] In the paragraphs that follow, I set out the factual background relevant to the Property. This background was presented to the Review Officer, and later, the Review Panel in support of Belmont's challenge to the Vacancy Tax assessment. [26] Belmont considered constructing a house on the Property in 2017. To that end, Belmont discussed the project with Stuart Howard Architects Inc. ("Architects") and entered into a contract with the Architects in April 2018. The Architects were to prepare plans for a house on the Property. The project scope was defined in the contract to mean "the architectural services required to design

and produce documents to obtain a development permit from the City to [b]uild a modest house on this presently vacant site in the RS-1 district" and to obtain the permit "as quickly as possible". [27] On August 8, 2018, the Architects submitted an application for a development permit for the Property to the City ("Development Permit Application"). The City assigned file number DP-2018-00693 to the Development Permit Application. [28] The City was, for the balance of 2018, considering the Development Application Permit. [29] In late 2018, Belmont was informed that an Archeological Impact Assessment might be required for the Property. The City confirmed that requirement on March 8, 2019. [30] On January 22, 2019, Belmont filed a Vacancy Tax declaration for 2018 claiming an exemption under s. 3.2(b). [31] The City selected the Property for an audit of its 2018 Vacancy Tax declaration. [32] The audit showed that the Vacancy Tax declaration for the Property relied on the exemption pursuant to s. 3.2(b) of the By-law due to redevelopment or renovation. [33] In support of the Vacancy Tax declaration, Belmont submitted a letter from the Architects stating that the Development Permit Application was submitted to the City on August 8, 2018. [34] In its written submission, the City described the events leading up to the initial rejection of the exemption in this way: After reviewing

documentary evidence relating to the claim submitted by the Petitioner in support of the exemption to the vacancy tax declaration, the City, by telephone message, advised the Petitioner's agent Calvin Leung that the Property did not qualify for an exemption from the tax. On July 30, 2019, the City received a telephone call from a representative of the Architects requesting clarification as to why the Property was not exempt. City staff explained that the By-law requires property owners to have full and complete development permit applications prior to July 1, 2018 in order to qualify for the exemption for the 2018 taxation year. By letter of July 31, 2019, the City informed [Belmont] of the outcome of the audit. [35] The July 31, 2019 letter stated: We have concluded the audit of your property status declaration. Based on the information and documents you submitted, we have determined that your property status declaration is non-compliant and your property is subject to the Vacancy Tax. The reason(s) for our non-compliant conclusion are as follows: Inappropriate Evidence DP-2018-00693 issued after July 1, 2018, not eligible for reno/redevelopment exemption. [36] On August 1, 2019, the City issued to Belmont a 2018 Vacancy Tax Notice assessing tax of $344,970.00 due by September 4, 2019 (if paid after this date, the tax due was increased to $362,218.50). B. Decision of the

Review Officer [37] On September 3, 2019, Belmont filed a request to review the audit, challenging the Vacancy Tax assessment (the "Complaint"). [38] The Complaint summarized the basis for Belmont's challenge as follows: A complete Development Permit Application for the Property was submitted and was being processed by the City during the vacancy reference period, and the application was being diligently pursued and without unnecessary delay. Accordingly, the Property should be exempted from the Vacancy Tax pursuant to the exemption contained in section 3.2(b) of the Bylaw. [39] The Complaint provided some of the background to the Development Permit Application and contended the audit was in error. In the Complaint, Belmont stated their position this way: The City erred for the following reasons in its Audit Determination in concluding that DP 2018-00693 being issued after July 1, 2018, not eligible for reno/redevelopment exemption: (1) The specific text of the Bylaw only requires that for the Vacancy Reference Period, a complete development permit application has been submitted on behalf of the registered owner and is under review by the City. The Bylaw did not specify that the application must be submitted by July 1 or any other prescribed date for the exemption to apply. (2) The City's own website providing information about the exemption specified that for residential

property that is vacant land: This provision was put in place to encourage owners of vacant land to move forward with the creation of housing supply on their properties. The Empty Home Tax will not apply to Class 1 residential property that is vacant land, when all of the following apply: There is no existing dwelling unit on the land Permits to build or develop have been applied for and are under review The application to build is being diligently pursued For vacant land with no dwelling unit, the Vacancy Tax Bylaw requires that a permit application is under review and being diligently pursued and does not require the permit to be issued for the exemption to apply. Similarly, the City's own website did not specify or even make mention that the development permit applications must be submitted by July 1 or any particular date within the Vacancy Reference Period. [40] In the Complaint, Belmont contended that it was contrary to the purpose of the By-law to introduce a July 1 application deadline as an eligibility requirement. Belmont submitted "the proposed development undertaken by Belmont fulfills the intent, meaning and spirit of the Bylaw and the Exemption by increasing the housing supply in the City. It is consistent with the City's objective for vacant lands that are not improved with any dwelling to pursue development." [41] A Review Officer was assigned to review the

Complaint. The Review Officer rendered their decision, dismissing Belmont's Complaint, by letter dated November 25, 2019. The Review Officer's decision confirming the tax assessment is as follows: Based upon a review of your submitted information and evidence to support your [Complaint], the City has determined that your property remains subject to the Vacancy Tax. The reasons for our conclusion are as follows: Inappropriate evidence Based on the information provided, the Vacancy Tax Review Officer determines that the reasons the property was unoccupied for more than six months in 2018 was not because it was carrying out redevelopment or initial development of residential property that is unimproved with any dwelling units, for which a development permit application is under review by the City, and is considered vacant under the Vacancy Tax By-Law. Other As per Section 3.2(b) of the By-Law, properties are only eligible for this exemption they are unoccupied for more than six months during the vacancy period to carry out either redevelopment or initial development of residential property where a development permit application has been submitted to the City as the development permit was not submitted until August 8, 2018, it does not meet the six month requirement for an exemption under section 3.2(b) of the Vacancy Tax By-Law. [42] The City provided a complaint file summary

reflecting the working notes of the Review Officer. The following are excerpts taken from that file summary: The property is found to be vacant land without any building on it. The by-law interpretation is that the owner must have the full and complete rezoning enquiry or development permit application, as well as required fee submitted to the City prior to July 1, 2018 in order to qualify for the redevelopment/renovation exemption. The design permit submitted (DP-2018-00693) has an application date of [August 8, 2018]; this was after the July 1, 2018 which disqualifies the property for the redevelopment/renovation exemption in the 2018 vacancy reference period. Conclusion: Non-compliant - redevelopment/renovations is inappropriate. [43] In response to Belmont's submission, the Review Officer's internal notes provide as follows: The bylaw explicitly states, as evident in the owners own package of evidence [ ] that the vacancy tax does not apply if the property was unoccupied for more than six months because the property was undergoing redevelopment or major renovations where permits were under review for redevelopment of vacant land. As permits were under review effective August 3rd [sic] 2018, the compliance analyst agrees with the audit, that the property does not qualify, as there was a 7 month, 3 day period for which the property had no permits submitted for review. While

the homeowner's lawyer is correct in stating that the July 1 date is not specifically stated in the bylaw, the bylaw clearly states the exemption applies to residential properties that were unoccupied for more than six months during the vacancy period to carry out either redevelopment or initial development of residential property that is unimproved with any dwelling units, for which a development permit application has been submitted and is under review by the City. The property only met the requirements of the exemption from August 8 to December 31, 2018 which is less than six months. C. Decision of the Review Panel [44] By letter dated December 20, 2019 and pursuant to s. 6.10 of the By-law, Belmont sought to review the decision of the Review Officer. In accordance with the By-law, the Review Panel was responsible for reviewing the decision. [45] In its submission to the Review Panel, Belmont set out its position about the proper interpretation to be attributed to s. 3.2(b) of the By-law. Belmont stated its Complaint this way: the City erred in its conclusion that the s.3.2(b) exemption did not apply because the development permit, submitted August 8, 2018, "does not meet the six month requirement for an exemption under section 3.2(b)". This is an incorrect interpretation of s. 3.2(b) because: (1) The section does not say that development applications must have been

submitted for more than six months during the vacancy reference period for the exemption to apply. The City's determination was therefore based on an illegitimate requirement which does not appear in the Bylaw. (2) Rather, the section says that the Property must be unoccupied for more than six months during the vacancy reference period to carry out redevelopment, which did occur on the facts of this case; (3) The section further says that, during the vacancy reference period a development permit application must have been submitted and be under review by the City, which also occurred on the facts of this case. The City's own website contradicts the position it has taken in this case It indicates the exemption applies to development permits for vacant land without any requirement that the development permit be submitted for more than 6 months during the reference period. Importantly, the next section of the website specifies July 1 as the deadline for projects requiring rezoning but not for projects requiring development permit application The next section related to vacant land also does not mention that the development permit applications must be submitted by July 1 or any particular date with the vacancy reference period [46] Belmont summarized its position to the Review Panel as follows: Introducing a six month requirement for the development permit application when this is

not expressly stated in the Bylaw exceeds the City's jurisdiction. If City Council had intended such a requirement, it would have explicitly set out such restrictions in the Bylaw and in the published guidelines and information circulars so that taxpayers were aware and could plan accordingly. The intent of the exemption is clear that it was to exempt owners of vacant land from the Vacancy Tax as long as, during the reference period, they had applied for a development permit which was being diligently pursued. [47] Two of the three members of the Review Panel disagreed with Belmont's interpretation of the By-law. The third member of the Review Panel agreed with Belmont and would have held that the Vacancy Tax did not apply to the Property. [48] By letter dated November 12, 2020, the Review Panel informed Belmont that it agreed with the decision of the Review Officer and that the Property remained subject to the Vacancy Tax. The Review Panel's decision was brief and provided: Based on the materials provided pursuant to section 6.12 of the Vacancy Tax By-law, the Vacancy Tax Review Panel agrees with the [Complaint] determination. [49] The Review Panel then simply repeated verbatim the conclusions of the Review Officer (that Belmont provided inappropriate evidence and other deficiencies as set out in para. 41 above). [50] The parties referred to the internal notes of the members

of the Review Panel. Those notes reveal the following: a) The first panelist agreed with the Review Officer noting, in part: The bylaw does not specify that applications must be applied for by July 1st of the same year to meet the timing requirement. However, the bylaw does provide that the residential property must be unoccupied for more than 180 days to carry out either redevelopment or initial development of residential property that is unimproved with any dwelling units, or the rehabilitation and conservation of heritage property for which a complete rezoning inquiry or one of the various permit applications has been submitted by or on behalf of the registered owner and is under review by the City. In this case, the Development permit Application was submitted on August 8, 2018. As a result, the owner did not meet the requirement for the property to be vacant for 180 days during which time a building permit application had been submitted and was under review. I have also considered the intent of the bylaw, to encourage increased rental housing for those who live and work in Vancouver. [51] Belmont noted that the first panelist of the Review Panel seems to have referred to the incorrect version of the By-law because they stated "180 days" (not six months) which is language from the earlier version of the By-law. However, Belmont does not suggest this mistake caused the error

identified here. [52] The second panelist disagreed with the Review Officer and the majority of the Review Panel concluding there was an error made by the Review Officer in applying the By-law. In response to Belmont's submission, the second panelist stated: [Belmont] brings to the attention the City of Vancouver website information regarding "vacant land"; that website indicates that property is not subject to the tax when all of the following apply: (1) there is no existing dwelling unit on the land; (2) permits to develop have been applied for and are under review; and, (3) the application to build is being diligently pursued. [Belmont] has met each of these requirements. There is nothing on this page of the City's website that mentions the 6-month residence requirement or a 1 July deadline. In addition, another page from the City's website indicates that, in instances of vacant land, "for projects requiring rezoning, submission of a full and complete letter of enquiry package and full payment of the required fee by July 1 of the reference year will meet this requirement." Since only a development/design permit application - not a rezoning permit application - was submitted in this matter, the July 1 date does not apply. Since the law and its explanations were promulgated and distributed by the City, the City must be clear in all its publications communicating to its

citizens the requirements of the applicable laws. Any result of the failure to be clear and complete must be absorbed by the City. Therefore, since the City's information regarding [Belmont's] requirements in this situation is not as clear as it should be, [Belmont] must prevail. [53] Belmont's position in the petition relied on a failure of the Review Officer and Review Panel to engage with the text and context of the By-law rather than inconsistency in the City's messaging - though this inconsistency demonstrates, Belmont asserts, the need to engage in the interpretation exercise. [54] The third panelist also agreed with the Review Officer, stating in part: In order to qualify for exemption under s. 3.2, a property must be unoccupied for more than six months in order to carry out either redevelopment or initial development of residential property that is unimproved with any dwelling units, or the rehabilitation and conservation of heritage property for which a complete rezoning inquiry or one of various permit applications has been submitted by or on behalf of the registered owner and is under review by the City. In this case, I note that, while there was a Development Permit application submitted on 8th August, 2018, this submission date was too late in the reference period to allow the property to be vacant for the required minimum period of six months stipulated in the

Bylaw. I have also considered the intent of the bylaw, which is to return vacant and underutilized properties to the long-term rental market for persons living and working in Vancouver. Based on that, I believe vacancy tax should be imposed on the property. [55] In sum, the majority of the Review Panel concluded as follows: The Panel finds that the evidence submitted was neither compelling nor effective in supporting a reasoned determination on a balance of probabilities that the property was unoccupied for a minimum of six months in order to carry out either redevelopment or initial development of residential property that is unimproved with any dwelling units, or the rehabilitation and conservation of heritage property for which a complete rezoning inquiry or one of the various permit applications has been submitted by or on behalf of the registered owner and is under review by the City. [56] On February 16, 2021, the petition was filed. IV. PARTIES' POSITIONS [57] Belmont takes the position that the decisions of the Review Officer and the Review Panel were unreasonable. Regarding a remedy, Belmont seeks an order quashing both decisions and (1) declaring the Property qualified for the exemption in s. 3.2(b) of the By-law; or, in the alternative, (2) remitting the Complaint to a new Review Officer for the determination of whether the property qualified for the exemption in

2018 and that Review Officer shall conduct an oral hearing; or, in the further alternative; (3) remitting the Complaint to a new Review Officer for the determination of whether the Property qualified for the exemption in 2018 under a process to be determined by the Review Officer after consultations with the petitioner and the City. [58] Belmont advanced three submissions in support of its position that the decisions were unreasonable. [59] First, the Review Officer's decision lacks transparency and intelligibility. Belmont framed the first submission this way: The Review Officer appears simply to have accepted the City's interpretation of s. 3.2(b) as set forth in its Interpretation Bulletin, without conducting any independent textual, contextual and purpose analysis of that paragraph. The Review Officer did not consider the meaning of the phrase "in order to" in s. 3.2(b), did not consider the meaning or purpose of the words "for which" in subsection 3.2(b)(i), did not consider the meaning or purpose of subsection 3.2(b)(ii), did not refer to the overall purpose of the Bylaw or to the specific purpose of s. 3.2(b), did not consider the lack of any July 1 deadline in the 2017 report and did not refer to the fact that the City's website imposes a July 1 deadline for rezoning applications but not for development permits. [60] Belmont's second submission is that the decisions

could not be justified because "nowhere do[es the majority of the Review Panel] explain how they reached their interpretations or how they can be squared with the actual wording of s. 3.2(b), which requires merely that the Property be vacant for six months 'in order to' (that is for the purpose of, in contemplation of), carry out the initial development, rather than 'during' the City's review of the application." Belmont contends that s. 3.2(b) requires the Property to have been vacant for more than six months in a year "in order to" safely carry out major renovations. [61] Belmont submits the decision-makers' use of the words "during" and/or "undergoing" demonstrate error in the interpretation task. [62] Belmont's third submission relates to remedy contending that this is one of those cases referred to in Vavilov where there is only one reasonable result. On this point, Belmont submits this court is not required to remit the matter to the decision maker but may declare and impose that result (para. 142). [63] The City's position is that Belmont has failed to demonstrate the decisions were unreasonable. With respect to the adequacy of the reasons of the Review Officer and Review Panel, the City relies on paras. 91 - 95 of Vavilov. The City framed their submission succinctly: The reasons provided by the Panel substantively address the issues raised by [Belmont] regarding the

application of the By-law to the particular circumstances of the Property. Read in context with the full record that is available to this Court it is clear that the Panel conducted a full analysis of the issues raised by the Petitioner and arrived at a reasonable decision. [64] During the hearing, the City added that Belmont's position is somewhat more nuanced than that presented to the Review Officer and Review Panel, particularly with respect to the phrase "in order to." As I consider the whole of Belmont's submissions presented to the Review Officer and the Review Panel, I do not agree with the City that Belmont's submissions are different in the manner suggested. Rather, at this petition, Belmont has attempted to establish its burden - by demonstrating how it is that that the decisions were unreasonable. As I understood the submission, Belmont was attempting to persuade the court that there was only one "correct" interpretation in order to its position that the court could ultimately determine the issue without the necessity of remitting the matter back to the Review Officer. [65] Indeed, in its Reply, Belmont described what has been its position from the outset: Neither the Review Officer, the majority of the Review Panel or the City have grappled with the text, context or purpose of s. 3.2(b). There is no consideration of the meaning of the phrase "in order to", there is

no comparison to the wording of s. 3.2(c), there is no analysis of how the purpose of the Bylaw as a whole or s. 3.2(b) in particular support the July 1 interpretation. V. ANALYSIS [66] As I have stated, Belmont and the City agree, as do I, that the applicable standard of review is "reasonableness", as guided by the decision of the Supreme Court of Canada in Vavilov. [67] As the Court stated in Vavilov, reasonableness is the presumptive standard of review (para. 10) and a reviewing court should not deviate from the presumption unless required by either clear legislative intent or by the rule of law. Here, there is nothing requiring me to deviate from the presumptive standard of review of reasonableness. [68] I have considered the paragraphs in Vavilov regarding statutory interpretation on reasonableness review (at paras. 117-124), as well as reasonableness review of administrative decisions where reasons are neither provided nor required (paras. 76 and 136-138). [69] Belmont bears the onus of showing that the decision was unreasonable. As Belmont states, for a decision to be reasonable, it must bear "the hallmarks of reasonableness - justification, transparency and intelligibility." [70] From the parties' respective submissions and filed materials in this petition, the issue for the court to determine is whether Belmont has demonstrated that the decisions of the Review Officer

and Review Panel were unreasonable. In other words, my task is to determine whether there is an interpretation of the By-law upon which the Review Officer and Review Panel could reasonably have based their decision. [71] Administrative decision-makers interpreting legislative provisions must consider the text, context and purpose of the provisions in order to arrive at the authentic meaning of the provision: see Hillier v. Canada (Attorney General), 2019 FCA 44. This is not a new proposition. Vavilov is the recent word from the Supreme Court of Canada, emphasizing that legislative intent "can be understood only by reading the language chosen by the legislature in light of the purpose of the provision and the entire relevant context" (para. 118). Where the meaning of a statutory provision is disputed, "the decision maker must demonstrate in its reasons that it was alive to these essential elements" (para. 120). Indeed, the administrative decision-maker's task is to discern the meaning and legislative intent of the contested provision, "while applying its particular insight into the statutory scheme" (para. 121). [72] As stated earlier, it is clear that the reviewing court is not to perform a de novo analysis or to determine the correct interpretation of the disputed provision. Nor should the reviewing court conduct its own analysis and then measure the administrative

interpretation against it. [73] Further, not every failure to examine a pertinent aspect of text, context or purpose will result in unreasonableness. However, as Vavilov indicates if "it is clear that the administrative decision maker may well have arrived at a different result" had it considered "a key element of a statutory provision's text, context or purpose", its "failure to consider that element would be indefensible, and unreasonable in the circumstances" (para. 122). [74] Vavilov poses the critical question this way: "whether the omitted aspect of the analysis causes the reviewing court to lose confidence in the outcome reached by the decision maker." (para. 122). [75] A reviewing court, while engaged in its reasonableness review, may insist that administrative decision-makers explain their reasoning and justify their conclusions on issues of legislative interpretation -- to ensure that administrative decision-makers have "meaningfully grapple[d] with key issues or central arguments raised by the parties" and are "alert and sensitive to the matter before it" (Vavilov at para. 128). If it is revealed from the reasons and the record that there is a fundamental gap or that the decision is based on an unreasonable chain of analysis, the court should not ordinarily fashion its own reasons in order to buttress the administrative decision (para. 96). [76] As I consider the

standard of review, I am satisfied that the decisions of the Review Officer and the Review Panel cannot stand. [77] That is, Belmont has demonstrated that the decisions are unreasonable. [78] In the paragraphs that follow, I set out the reasons for reaching this determination. [79] I accept Belmont's submission that neither the Review Officer or the majority of the Review Panel grappled with the text, context and purpose of the provision when they concluded, in one form or another, that s. 3.2(b) required the Development Permit Application to have been submitted by July 1, 2018 or that "more than six months" applied to both the vacancy of the property and to the time the Development Permit Application was before the City for consideration. [80] Specifically, the Review Officer did not consider the meaning of the phrase "in order to" in s. 3.2(b), did not consider the meaning or purpose of the words "for which" in subsection 3.2(b)(i), did not meaningfully consider the overall purpose of the By-law or this exemption, and did not consider the language differences between subsection 3.2(b) and (c). The Review Officer did not consider the 2017 Report or the City's website and the fact neither stipulated a July 1 deadline for development permit applications. [81] The Review Officer concluded, without analysis, that there needed to be a full and complete development permit

application (and fee) submitted to the City prior to July 1, 2018. [82] In effect, the Review Officer read in the requirement that the Development Permit Application needed to be submitted by July 1, 2018 but did not explain how it was that they arrived at that interpretation. There is no consideration of "in order to" or "for which" to explain how it was that they landed on the interpretation they did. [83] Rather, the Review Officer reached a result that required the exemption to be interpreted with words that do not appear in the By-law. The Review Officer does not engage with the text, even minimally, to explain this interpretation. [84] Nor is there any consideration of s. 3.2(c) which specifically contemplates that "a complete development permit application has been submitted . and is under review by the City during the vacancy reference period." [emphasis added] [85] This element (time the development permit needed to be extant) was essential to Belmont's eligibility for the exemption. It was not a peripheral matter unimportant to the overall determination by the Review Officer. [86] The decision of the majority of the Review Panel is similarly flawed. Though the Review Panel stated that they had considered the purpose of the By-law, they did not connect, in any way, that purpose to the interpretative exercise with which they were engaged. Simply put, they did not

explain how the purpose of the By-law supported their conclusion. [87] In my view, this is the sort of lip service the Supreme Court of Canada warned against. [88] Likewise, the majority did not grapple with the meaning of the phrase "in order to" in s. 3.2(b). [89] As I review Belmont's submissions to the Review Officer and the Review Panel, this interpretative issue was placed squarely before these decision-makers. As I have stated, I do not agree that Belmont, on the issue of reasonableness, has offered a more nuanced interpretation at this hearing. [90] In sum, I agree with Belmont that the decisions of the Review Officer and the Review Panel do not display the required internally coherent and logical chain of analysis that would allow the reviewing court to understand how they arrived at their interpretations and applications of s. 3.2(b) on the facts presented here. [91] I do not suggest that the Review Panel needed to produce lengthy reasons supporting their interpretation. The difficulty, however, is that there is an unexplained leap made. There is no analysis about how they reached the decision that this exemption required a July 1 deadline or that the Development Permit Application needed to be outstanding for a period of six months during which time the City is reviewing the permit application. They do not explain, in terms of text, context or purpose, how they reach

this interpretation. [92] The decisions, the reasons and the record do not provide the basis for interpreting the By-law as imposing a July 1 application deadline. [93] The Review Panel omitted important elements in its analysis and made some leaps of reasoning that may not be justified. It is these defects that have resulted in a loss of confidence in the Review Panel's interpretation of s. 3.2(b). [94] The City contends that the tenses used in the By-law matter and that the interpretation reached by these decision-makers took that into account. I agree with Belmont that the decision makers did not attempt to justify the interpretation suggested by the City that "for which" in subsection 3.2(b)(i) as "during which". [95] Though the City's explanation may be correct, this is not evident in the reasons or record of the decision-makers. [96] Vavilov makes clear that reasonableness is to be assessed in relation to both the reasoning process as explained by the decision maker and the outcome in relation to the relevant facts and law. As summarized by Justice Hunter in The Architectural Institute of British Columbia v. Langford (City), 2021 BCCA 261 at para. 41, a reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker (citing Vavilov at para. 85).

Elements of the legal and factual contexts of a decision operate as constraints on the decision maker in the exercise of its delegated powers. These constraints include the governing statutory scheme, other relevant statutory or common law and the principles of statutory interpretation. [97] Even deferring to their expertise when interpreting a By-law such as this, by omitting any analysis with reference to the principles of statutory interpretation or case authority on the subject, confidence is lost in the outcome the Review Officer and Review Panel reached. [98] Based on my review of the whole of the record, the decision-makers did not grapple with the text, context or purpose of s. 3.2(b). As I have stated, there is no consideration to the meaning of the phrase "in order to", there is no comparison to the wording of s. 3.2(c), and there is no analysis of how the purpose of the By-law as a whole or s. 3.2(b) in particular, support the imposition of a July 1 development permit application deadline. [99] That said, I am resisting the invitation to interpret the By-law in the manner proposed by Belmont. Belmont has proposed an interpretation that may very well carry the day. However, the administrative decision maker should determine it. VI. CONCLUSION/ORDER [100] I have concluded that Belmont has established the decisions of the Review Officer and the Review Panel were

unreasonable and I grant the following order: a) The decision dated November 25, 2019, made by the City's Review Officer dismissing the petitioner's Notice of Complaint dated September 3, 2019 regarding the Property at 4769 Belmont Avenue, Vancouver, BC for 2018 filed pursuant to s. 6.3 of the City's Vacancy Tax By-Law No. 11674 is hereby quashed; b) The decision dated November 20, 2020, of the Review Panel, dismissing the petitioner's request dated December 20, 2019 for a review of the Review Officer's Decision, is hereby quashed; and c) The Complaint is remitted to a new Review Officer for the determination of whether the Property qualified for the exemption in 2018. [101] I have not provided any direction regarding the form or process of the reconsideration because that is something that is well within the purview of the next review officer. [102] The petitioner requested an opportunity to address costs. The parties have 30 days from the date of these reasons to request an opportunity to address costs. Otherwise, the petitioner is entitled to their costs. "Winteringham J."