Forbes Chevrolet Oldsmobile Ltd. v. Dartmouth (City)

Forbes Chevrolet Oldsmobile Ltd. v. Dartmouth (City) Court Court of Appeal Date 1996-02-06 Citation 1996 NSCA 25 Docket CA 118581 Judge/Registrar/Adjudicator Hallett, J. Doane (Honourable Justice) (CA); Hart, Gordon L.S. (Honourable Justice); Freeman, Gerald B. (Honourable Justice) (CA) Document Type Decision Decision Content C.A. No. 118581 NOVA SCOTIA COURT OF APPEAL Cite as: Forbes Chevrolet Oldsmobile Ltd. v. Dartmouth (City), 1996 NSCA 25 Hallett, Hart, and Freeman, JJ.A. BETWEEN: FORBES CHEVROLET OLDSMOBILE ) David A. Miller, Q.C. LIMITED, a body corporate, and ) and Meinhard Doelle 1884934 NOVA SCOTIA LIMITED, ) for the Appellants a body corporate ) Appellants ) ) - and - ) ) ) CITY OF DARTMOUTH, a body corporate and ) Mary E. Donovan DIRECTOR OF ASSESSMENT OF THE ) for the Respondent, PROVINCE OF NOVA SCOTIA ) City of Dartmouth ) Respondents ) Randall R. Duplak, Q.C. ) Amy J. Parker ) for the Respondents, ) Director of Assessment ) ) ) Appeal Heard: ) January 11, 1996 ) ) ) Judgment Delivered: ) February 6, 1996 ) ) ) ) THE COURT: Appeal allowed with costs per reasons for judgment of Freeman, J.A.; Hallett and Hart, JJ.A., concurring. Freeman, J.A.: The 1993 assessment roll for the City of Dartmouth included a commercial assessment of $3,995,800 for the appellants which are two associated companies operating from the same premises, plus a business occupancy assessment for each, one in the amount of $772,300 and the other for $226,700. Notices of appeal were filed from all three assessments within the time limits provided by the Assessment Act, 1989 R.S.N.S. c. 23. The Director of Assessment accordingly reviewed all three assessments, found they were too low, and increased the commercial assessment to $5,047,800 and the business occupancy assessments to $822,100 and $239,100 respectively. Revised notices of assessment advising of the increases were sent out December 3, 1993. The appellants had filed notices of withdrawal of the appeals respecting the commercial assessment and one of the business occupancy assessments on November 2, 1993. Their position is that withdrawal of the appeals withdrew the Director's jurisdiction to reassess their property. They filed a notice of dissatisfaction with the amendments made by the Director, which preserves their right to appeal the assessment on its merits, and also applied to the Supreme Court of Nova Scotia for orders in the nature of certiorari quashing the reassessment and mandamus reinstating the earlier assessment. This is an appeal from dismissal of that application. Under the Assessment Act an assessment roll updated to December 1 of each year is filed prior to the end of that December to govern the following municipal taxation year, which is the calendar year beginning January 1. A number of sections in the Act provide for the rectification of omissions and other clear errors during the year to which the assessment roll applies. Once the assessment roll is filed, however, the Director is not permitted to revise assessments merely because they are too high or too low. The one exception to that rule is under s. 68 which applies with regard to notices of appeal. Upon receipt of a notice of assessment appeal the Director is required by s. 68(2) to "forthwith review the assessment complained of . . ." and having reviewed it, may then alter it and give notice of the amendment to interested parties under s. 68(3) and (4). If the appellant or respondent do not file a notice of dissatisfaction within seven days, s. 68(5) provides that "the appeal shall be deemed to have been abandoned". If the Director does not alter the assessment or if notice of dissatisfaction is filed, s. 68(6) provides that "the appeal shall proceed . . . " The appellants argue that the Director's jurisdiction to amend the assessment depends upon there being an "assessment complained of" at the time of the amendment. When there is no longer an assessment complained of, that is, when the appeal is withdrawn, the Director's authority to alter the assessment comes to an end. The trial judge correctly noted that there is no provision in the Assessment Act for withdrawing an appeal once it is commenced by notice. However he concluded that upon the filing of the notice the Director's authority to review the assessment complained of was triggered and was not revoked by filing a notice of withdrawal. I consider that interpretation to be in error. The trial judge stated at pp. 4 and 5 of his decision: "The fundamental purpose of the Act is to ensure that all properties are accurately assessed in a particular year. It is designed: . . . to ensure that the ratepayers of each year are assessed to meet the obligations incurred and maturing in that year. Manning, Assessment and Rating in Canada, 4th ed. (Toronto: Canada Law Book, 1962) at p. 138 . . . Once in possession of information which indicates that the roll is incorrect, the Director is bound to continue his review in order to come to a conclusion whether he should exercise his discretion by altering the assessment . . . It should not be open to the property owner to commence and then abandon an appeal, in a way that would prevent the Director from ensuring an accurate assessment, simply because the owner comes to realize that the value would likely go up rather than down. To accede to such an argument would frustrate the legislative scheme." With respect, it is not necessary to conclude that the power given to the Director under s. 68 must continue after withdrawal of an appeal in order to assure the accuracy of the assessment roll. Among the remedial provisions of the Act is s. 76 which gives the assessment appeal court authority to increase an assessment of its own motion. The need to involve an adjudicative body, albeit not acting judicially, avoids any apprehension that the Director is acting arbitrarily. In Harvard Realty v. Director of Assessment (1979), 35 N.S.R. (2d) 60 the words "complained of" in s. 84(2) [now s. 68(2)] were seen as basic to the Director's authority to alter an assessment. In that case an assessment included both commercial and residential property. Only the commercial assessment was complained of in the notice of appeal but the Director purported to use the powers granted under s. 84(2) to increase the residential assessment. The trial judge found the Director lacked jurisdiction with respect to the residential assessment because it was not complained of. The appeal to this court was dismissed. Cooper J.A. stated at p. 73: "The whole difficulty in this case may be said to have arisen from the enactment of c. 57, s. 5, of the Statutes of 1975 introducing into the assessment process classification of property for the first time with no clear provision putting beyond doubt the power of review of the Director as related to the classification valuations and thus at the least raising an ambiguity which should be resolved against the taxing authority. I nevertheless am of the opinion that, having regard to the governing words 'complained of' and for the other reasons I have given, the Director's power of review under s. 84(2) [now s. 68(2)] does not extend here to the residential property, the valuation of which was not appealed. In effect, the power of the Director is to deal with the matter complained of by review and that only. Section 84(2) should not be construed so as to force the respondent to place in issue a valuation (the residential property) with which it has no quarrel whatever. The respondent may have to meet such a situation when it reaches the regional assessment appeal court because of s. 91(1) [now. s. 76(1)], but it should not be under the disadvantage when entering upon the appeal court hearing of facing a higher valuation of its residential property than was arrived at by the assessor. " That reasoning is apt to the present case. The entire assessment had to be appealed in Harvard Realty (supra), but only one element of the assessment, the commercial property, was complained of. Jurisdiction did not extend to alter the other element of the assessment, the commercial property, because it was not complained of. In the present case there was no assessment complained of to empower the Director to alter the assessment under s. 68(2) when he purported to do so because the complaint had been withdrawn. Generally speaking, a person who commences a proceeding cannot be compelled to pursue it to a conclusion. In the absence of provisions to the contrary, a right to withdraw or abandon an appeal may be inferred from the right to bring an appeal. This appears to be consistent with s. 68(5) which deems an appeal to be abandoned if no notice of dissatisfaction is filed when an alteration has been made. Once the appeal is withdrawn upon proper notice, it would follow that the notice of appeal would have no further legal effect. Again in the absence of provisions to the contrary. It would become a nullity as of the date of withdrawal. The Director, therefore, would not be entitled to exercise the powers granted under s. 68 after the notice of appeal is withdrawn. In my view, this is the correct interpretation. If it is not, it is at least a reasonable interpretation. So is that of the trial judge. Two reasonable but contradictory interpretations of a statutory provision suggest ambiguity. Ambiguity in the interpretation of a statute must be decided in favour of the taxpayer. In Harvard Realty (supra), Cooper J.A. stated at pp. 71-72: "I add that if there is ambiguity in s. 84(2 ) [now s. 68(2)] that ambiguity should be resolved in favour of the respondent. We are here dealing with a statute which although not imposing a tax by its own terms nevertheless provides the basis for taxation. We were referred to a number of authorities holding that, as put by Brodeur, J., in Foss Lumber Co. v. The King (1912), 8 D.L.R. 437, Supreme Court of Canada, at p. 447: . . . a statute imposing a tax should always be strictly construed and that, in case of doubt, the tax should not be levied. . . Among the other cases cited to us I need only mention further Shaw v. Minister of National Revenue, [1939] 4 D.L.R. 81, Supreme Court of Canada, and Ottawa v. Kemp, [1931] 4 D.L.R. 412, Ontario Court of Appeal, at p. 415, where Masten, J.A., approved a passage from Craies' Statute Law, 3rd ed., p. 105: 'Express and unambiguous language appears to be absolutely indispensable in statutes passed for the following purposes:- (1) Imposing a tax or charge . . .' It seems to me that these authorities should be applied in construing the Act here; it results in tax being imposed upon owners of property as an indispensable step in the taxing process." In the present circumstances it is not necessary to determine whether a notice of withdrawal filed subsequent to notice of an amendment given under s. 68 would be effective to prevent the amendment or the operation of ss. 68 (5) and (6). By altering the assessment following withdrawal of the appeal, when there was no longer an "assessment complained of" the Director exceeded his jurisdiction and the amendment is subject to judicial review. As the appellants point out, assessment appeals must be filed within twenty-one days. In the modern marketplace, it can take much longer than that for an owner to obtain a valuation for his property to determine whether his assessment is fair. It may appear necessary to file a notice of appeal in order to preserve options with a view to withdrawing it if the assessment proves reasonable. This may not be seen as a desirable practice for it injects an element of uncertainty into the Director's duties under s. 68. An amendment to the statute might merit consideration. With respect to the appeal that was not withdrawn, the business occupancy assessment of the appellant, Forbes Chevrolet Oldsmobile Limited, for $772,300, an amendment was within the Director's jurisdiction. That assessment remains subject to the original appeal pursuant to s. 68(6) because a notice of dissatisfaction was filed. Business occupancy assessment is a percentage of the commercial assessment based on the number of square feet occupied. The calculation should be based on the commercial assessment in the 1993 assessment roll, not the quashed alteration. The appeal is allowed and an order in the nature of certiorari shall issue quashing the amendments by the director to the 1993 assessment roll respecting the appeals which were withdrawn. The assessment contained in the 1993 assessment roll remains valid and an order in the nature of mandamus is not necessary. Costs are fixed in the amount of $1,000. FREEMAN, J.A. Concurred in: HALLETT, J.A. HART, J.A. C.A. No.118581 NOVA SCOTIA COURT OF APPEAL BETWEEN: FORBES CHEVROLET OLDSMOBILE ) LIMITED,a body corporate and ) 1884934 NOVA SCOTIA LIMITED, ) a body corporate ) ) Appellants ) - and - ) REASONS FOR ) JUDGMENT BY: CITY OF DARTMOUTH, a body corporate ) and DIRECTOR OF ASSESSMENT OF ) Freeman, J.A. THE PROVINCE OF NOVA SCOTIA ) ) Respondents ) ) ) ) ) ) )