Nova Scotia (Assessment) v. Creelman

Nova Scotia (Assessment) v. Creelman Court Court of Appeal Date 2010-11-16 Citation 2010 NSCA 88 Docket CA 319649 Judge/Registrar/Adjudicator Fichaud, Joel E. (Honourable Justice) (CA); Farrar, David P.S. (Honourable Justice) (CA); Oland, Linda L. (Honourable Justice) Document Type Decision Relations Library Sheet - Nova Scotia (Assessment) v. Creelman - 2010 NSCA 88 - 2010-11-16 - Library Sheet Decision Content NOVA SCOTIA COURT OF APPEAL Citation: Nova Scotia (Assessment) v. Creelman, 2010 NSCA 88 Date: 20101116 Docket: CA 319649 Registry: Halifax Between: Director of Assessment Appellant v. Jonathan C. Creelman Attorney General of Nova Scotia Nova Scotia Utility and Review Board Respondents Judge(s): Oland, Fichaud, Farrar, JJ.A. Appeal Heard: September 20, 2010, in Halifax, Nova Scotia Held: Appeal is dismissed without costs. Counsel: Robert W. Andrews, for the appellant R. Lester Jesudason and S. Bruce Outhouse, Q.C., for the respondent, Nova Scotia Utility and Review Board Edward Gores, Q.C., for the respondent, Attorney General of Nova Scotia, not appearing Jonathan C. Creelman, not appearing Reasons for judgment: [1] This is an appeal from an assessment decision of the Utility and Review Board (Board). The Board's decision was released in tandem with Board decisions in four other assessment appeals. The Director of Assessment (Director) appealed all five to this court. This decision is released concurrently with the Court's decisions on the other four appeals [Nova Scotia (Assessment) v.van Driel, Crane, Schrader, Aucoin, 2010 NSCA 87, 89, 90 and 91]. [2] Except for the addition of one ground on this appeal, the written submissions to the Court of Appeal here replicated those in Nova Scotia (Assessment) v. van Driel, 2010 NSCA 87. At the Court of Appeal's hearing the parties agreed that, except for the additional argument, a single set of submissions would be made for both appeals, and that the same principles would govern the court's conclusions in both appeals. The court's van Driel decision analyzes the common issues at length, and this decision should be taken as incorporating van Driel’s discussion on those common issues. [3] Mr. Creelman owned two vacant lots in Colchester County: a 1.84 acre parcel on the West Tatamagouche Road (West Lot) and a 4 acre parcel on the French River (River Lot). Only the West Lot is involved in the appeal to this court. [4] The 2006 assessments for the West Lot and River Lot were $4,500 and $5,600 respectively. Mr. Creelman appealed the assessments to the Regional Assessment Appeal Court, (RAAC), which confirmed the assessments. [5] Mr. Creelman appealed to the Board. After a hearing, the Board issued a decision and order on October 8, 2009 (2009 NSUARB 147). The Board allowed the appeal, and determined that the 2006 assessments be $4,306.50 for the West Lot and $2,871 for the River Lot. The Board found that there was no evidence to establish that the West Lot's assessed market value of $4,500 was incorrect. The GLA was 95.7 %. The Board multiplied the $4,500 by 95.7 % to arrive at $4,306.50 as the assessment. The Board's decision incorporated principles stated in the Board's van Driel decision. [6] The Director appealed to this court under s. 30(1) of the Utility and Review Board Act, S.N.S. 1992, c. 11 (URB Act). With the addition of the one ground that I will address later, the Director's submissions on this appeal repeat the Director's submissions in the van Driel appeal to this court that: (1) the Board wrongly issued a quasi-legislative "directive" on the calculation of the GLA, (2) the Board's approach to the GLA was erroneous, and (3) the Board improperly introduced the GLA issue into the appeal without any contest on the matter between Mr. Creelman and the Director. These are the second and third issues discussed in this court's van Driel decision. [7] I will not repeat the analysis that I have set out in detail in the van Driel decision. [8] To summarize, I reject the Director's submission that the Board issued a quasi-legislative “directive” respecting the GLA. The Board’s order just reduced Mr. Creelman’s 2006 assessment, and said nothing about future calculations of the GLA. The Board's reasons explain, or incorporate from van Driel, the Board's reasoning for its conclusion. That the Board's reasons may have precedential value in a later case is par for the course in a ruling by a quasi-judicial tribunal that establishes its own body of caselaw. [9] The Board made no legal error in its reasoning respecting the GLA process to achieve uniformity under s. 42(1) off the Assessment Act, R.S.N.S. 1989, c. 23 as amended. [10] The Board did not violate principles of fairness, or upend the burden of proof or otherwise err by considering the GLA issue. Mr. Creelman's Notice of Appeal to the Board said "the assessment is too high". This placed uniformity in issue, as discussed in this court's van Driel decision, ¶ 45 and in Nova Scotia (Director of Assessment) v. Wolfson, 2008 NSCA 120, ¶ 3, 20. The Director’s Summary of Practice was the same as discussed in van Driel (¶ 48). The Board was entitled to express its views on those matters, and the Board's conclusions exhibit no error under s. 30(1) of the URB Act or under the standard of review. [11] The Director submits that the Board erred in its application of the GLA to Mr. Creelman's West Lot assessment. The Director's factum says: It remains the Director's understanding that in cases where the Board makes a finding that an Appellant has failed to establish that his assessed value is greater than his actual cash value, the Board must dismiss the appeal. The Director's factum cites Hebb v. Town of Lunenburg (1979), 32 N.S.R. (2d) 427 (S.C.A.D.). Once the Board found that the West Lot's market value was $4,500, as assessed, then, according to the Director's submission, the Board should not have adjusted the assessment by the 95.7 % GLA. [12] I disagree with the Director's submission. [13] In Hebb, Chief Justice MacKeigan said: 23 To show error by the assessor, an appellant such as Mr. Hebb accordingly must either establish that his property was assessed at more than its actual cash value, and here the actual cash value was admitted to be at least $ 43,900.00, or prove that "the general level of assessment of properties in the municipality was lower in relation to the actual cash value" than was his assessment. [14] Here Mr. Creelman did not show the first of Chief Justice MacKeigan's two alternatives. But the Chief Justice's second alternative did apply. [15] Mr. Denuke, the residential appraiser employed by the Director in the Creelman appeal, testified to the Board that, in his view, the property would sell for $4,500. Accordingly, the Board accepted that the market value was $4,500, as assessed. But the Board found (¶ 87): The Director stated the GLA for the 2006 taxation year for Colchester was 95.70 %. [16] The Board accepted the Director's evidence that the GLA was 95.7 % of market value. This meant that, on average, others in the municipality were assessed at 95.7 % of market value, while Mr. Creelman's assessment was at 100 % of the West Lot's market value of $4,500. Many authorities, including Hebb, state that uniformity is the dominant principle in municipal assessment in this Province and that uniformity is achieved by multiplying the market value by the GLA. Those decisions are cited in this court's van Driel decision, ¶ 50. The Board made no error in applying the GLA to Mr. Creelman's West Lot assessment. [17] I would dismiss the Director's appeal, without costs. Fichaud, J.A. Concurred in: Oland, J.A. Farrar, J.A.