Homburg L.P. Management Inc. v. Nova Scotia (Assessment)

Homburg L.P. Management Inc. v. Nova Scotia (Assessment) Court Supreme Court Date 2005-10-11 Citation 2005 NSSC 270 Docket SH 244692 Judge/Registrar/Adjudicator Coughlan, C. Richard (Honourable Justice) Document Type Decision Relations Library Sheet - Homburg L.P. Management Inc. v. Nova Scotia (Assessment) - 2005 NSSC 270 - 2005-10-11 - Library Sheet Decision Content IN THE SUPREME COURT OF NOVA SCOTIA Citation: Homburg L. P. Management Inc. v. Nova Scotia (Assessment), 2005 NSSC 270 Date: 20051011 Docket: S.H. 244692 Registry: Halifax In the Matter of: The Assessment Act, R.S.N.S. 1989, c. 23, as amended Between: Homburg L. P. Management Incorporated, as general partner for Homco Realty Fund (20) Limited Partnership and Homburg L. P. Management Incorporated as general partner for Homco Realty Fund (1) Limited Partnership Applicants and The Director of Assessment, the Recorder, and the Regional Manager under the Assessment Act Respondents Judge: The Honourable Justice C. Richard Coughlan Heard: July 14, 2005 (in Chambers), at Halifax, Nova Scotia Written Decision: October 11, 2005 Counsel: Michael J. O’Hara, for the Applicants Randall R. Duplak, Q. C., for the Respondents Coughlan, J.: [1] Application is made for orders in the nature of certiorari to quash the decision not to process the appeals in respect to the 2004 real property assessment of properties at 1741 Brunswick Street, Halifax, Halifax Regional Municipality, Nova Scotia and 356 Windmill Road, Dartmouth, Halifax Regional Municipality, Nova Scotia; and mandamus directing the Director of Assessment, Recorder and Regional Manager to comply with duties imposed on them pursuant to the Assessment Act, R.S.N.S., 1989, c. 23. In the alternative, relief is sought pursuant to s. 94 of the Assessment Act. [2] I have read the material filed, including the affidavits of Lloyd Digdon and Lloyd MacLellan, the pre-hearing submissions of counsel and heard the cross-examination of Messrs. MacLellan and Digdon and the submissions of counsel. [3] The facts are as follows: [4] Homco Realty Fund (20) Limited Partnership owns real property located at 1741 Brunswick Street, Halifax, Halifax Regional Municipality, Nova Scotia. Homco Realty Fund (1) Limited Partnership owns real property located at 356 Windmill Road, Dartmouth, Halifax Regional Municipality, Nova Scotia. [5] By letter dated May 17, 2002 from Lloyd MacLellan, Regional Manager, Service Nova Scotia and Municipal Relations, addressed to Homco Realty Fund (20) Limited Partnership Homburg, certain financial information was requested in connection with valuation of property for the 2004 Assessment Roll concerning the 1741 Brunswick Street property. The information was sent to Service Notice by courier on June 24, 2002. [6] Two letters dated May 17, 2002 from Lloyd MacLellan, were sent to Homburg L. P. Management Inc. General Partner, one requesting certain financial information in connection with the valuation of 356 Windmill Road, Dartmouth for the 2003 Assessment Roll, and the other for the 2004 Assessment Roll. Both letters contained the same reference number GT418332809. [7] A tracking statement was included in the Return filed. Mr. MacLellan initially testified the tracking statement which showed a letter was delivered on May 21, 2002 referred to the letter requesting information for the 2003 Assessment Roll. When it was pointed out to him the letter included in the Return dealt with the 2003 Assessment Roll, he could not explain to which letter the tracking statement referred. The tracking statement contained the reference number used on both letters. [8] The information requested for the 2004 Assessment Roll was compiled by Lloyd Digdon, president of Harringan Financial Services Limited. Harringan provides various consulting and other services to the Homburg Group of companies. The forms supplied by Service Nova Scotia and Municipal Relations, Assessment Services Division, for both properties were completed and returned to the Assessment Services Division. Mr. Digdon’s evidence is the information was returned by courier on June 24, 2002. The information for 356 Windmill Road is date stamped June 25, 2002 and another date of August 27, 2002 is marked on the form which Mr. MacLellan thought was the date an assessor was working with the information. The information for 1741 Brunswick Street is date stamped June 28, 2002. [9] Mr. MacLellan testified Assessment Services makes every effort to date stamp information when it comes in, but it is conceivable material is not date stamped the same day it is received. The information concerning 356 Windmill Road was date stamped June 25, 2002. [10] In any event, the evidence is clear the requested information was received by Assessment Services and was used by Assessment Services in valuing the properties for the 2004 Assessment Roll. [11] The 2004 assessments concerning the properties at 1741 Brunswick Street and 356 Windmill Road were appealed. [12] Assessment Services responded to the appeals by the letters dated October 29, 2004 and October 28, 2004, which letters contained the following: A recent decision of the Nova Scotia Utility and Review Board (NSUARB) has determined that it did not have jurisdiction to hear an appeal related to whether or not the property owner has complied with a request for information. Since the NSUARB is without jurisdiction to hear this type of appeal, so is the Regional Assessment Appeal Court (RAAC). As a result of this decision, your 2004 appeal to the RAAC on the above account dealing with your failure to comply with our 2002 request for information will not be heard. [13] And by letter dated December 21, 2004: Further to our letter of October 29, 2004, and your letter of November 4, 2004. The 2004 notice of appeals are non-compliant. Therefore, with the recent decision from the Nova Scotia Utility and Review Board (NSURB) you must make application with the Supreme Court. In accordance with Section 21 of the Assessment Act the property owner was required to return this information within the 30 days of receipt of the request. The information was delivered on May 21, 2002 and signed by D. MacKinnon, and then returned to our office on June 28, 2002. [14] Section 23 of the Assessment Act provides: Every person who (a) knowingly provides an assessor with false information in response to a request for information whether delivered under Section 20 or otherwise; or (b) neglects, refuses or fails to (I) give to an assessor information reasonably required by him, (ii) furnish any particulars required by this Act or by a form authorized thereby, or (iii) provide information in response to a request under Section 20 or to answer, complete and return the form referred to in Section 20. is guilty of an offence under this Act and, whether or not he has been prosecuted or paid any fine or served any imprisonment to which he has been sentenced, he shall not be entitled to appeal from the assessment of his property for the year in respect of which the information, particulars or form were requested. [15] The issue for the Court is whether Assessment Services erred in not processing the applicants’ appeals of their 2004 assessments. [16] In an application for judicial review, a court must determine the appropriate standard of review. It is not necessary for me to do so in this case as I find the action of not processing the appeals fails to meet the standard of review with the highest level of deference, that being, patent unreasonableness. [17] Section 62 of the Assessment Act sets out who can appeal an assessment. The applicants are such persons. The respondents say the applicants do not have the right to appeal the assessments as they had not responded to a request for information pursuant to s. 23 of the Act. Someone has to make the determination whether s. 23 of the Act applies. [18] In Nova Scotia (Director of Assessment) v. Springwell Properties Ltd. (1993), 119 N.S.R. (2d) 227 (N.S.S.C. - A.D.) the Appeal Division dealt with the issue of whether the Regional Assessment Appeal Court and the Municipal Board had jurisdiction to determine whether a party had lost the right of appeal pursuant to s. 23 of the Assessment Act. Jones, J.A., in giving the Court’s judgment, stated at p. 234: In my view the appeal to the Municipal Board was not premature and both the Municipal Board and the Regional Assessment Appeal Court had jurisdiction to determine whether a party had lost the right of appeal pursuant to s. 23 of the Assessment Act. I would allow the appeal, set aside the order of the board and remit the matter to the Municipal Board for a determination of that issue. [19] The Nova Scotia Municipal Board has been continued as the Nova Scotia Utility and Review Board. [20] In the face of such a clear statement from the Appeal Division, it is patently unreasonable for Assessment Services to take the position that the Regional Assessment Appeal Court is without jurisdiction to hear the appeal as to whether a party has lost the right of appeal pursuant to s. 23 of the Assessment Act. [21] I grant the orders of certiorari and mandamus requested. [22] If the parties are unable to agree, I will hear them on the issue of costs. _______________________________ Coughlan, J.