Standard of Review: The Great Passion of Canadian Law?

The great passion of Canadian law is standard of review. Judging by last week’s 5:4 decision in Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, we can’t get enough litigation and case law on the subject.

First, a note about the style of cause, which is determined by the vagaries of court practices. The order of the parties should really be reversed, because it was Edmonton East (Capilano) Shopping Centres Ltd. (the “Company”) that started the case by filing a complaint with the Assessment Review Board (the “Board”) for the City of Edmonton (the “City”).

In 2011, the Company formally complained to the Board that the City’s assessed value of its shopping centre exceeded its market value, and that the assessment should be reduced from $31 million to $22 million. When the City reviewed the Company’s evidence, it concluded that the assessment should actually be increased—to $45 million—and told the Company it would seek this increase from the Board. The Company took this as a veiled threat to withdraw the complaint, which it refused to do. The dispute centred on whether the property was a “community centre” or a “power centre,” which in turn related to Wal-Mart having taken over as an anchor tenant and walling off access to the rest of the shopping centre. The Board concluded that the property was something between the two types of centres, but gave the City most of what it asked for, raising the assessed value to $41 million. Upon being granted leave to appeal, the Company succeeded in having a chambers judge set aside the Board’s decision. That order was affirmed by the Alberta Court of Appeal, and from there the City successfully obtained leave and appealed to the Supreme Court of Canada.

The majority— Abella, Cromwell, Karakatsanis, Wagner and Gascon JJ—said that the standard for reviewing the Board’s decision was reasonableness, and held that the Board’s decision to increase the assessment was reasonable. According to the majority, the key issue—whether the Board had authority to increase an assessment in response to a taxpayer’s complaint—wasn’t one of the four categories in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 that called for correctness review; thus reasonableness was the presumptive standard and there was no need “to engage in a long and detailed contextual analysis.” (para 34) Because the governing statute gave the Board the ability to “change” an assessment after a complaint, the majority thought it was reasonable for the Board to have done so in this case.

The minority—McLachlin CJ and Moldaver, Côté and Brown JJ—said that the standard of review was correctness, and held that the Board’s decision to increase the assessment was incorrect. According to the minority, although the Board was presumptively owed deference when interpreting its own statute, that presumption was rebutted by legislative intent, including a statutory right to apply for leave to appeal where the issue, in the words of the statute, is one “of law or jurisdiction of sufficient importance to merit an appeal and has a reasonable chance of success.” The minority said that the Board’s assessment expertise didn’t necessarily extend to general questions of law and jurisdiction. “An approach to the standard of review that relies exclusively on categories and eschews any role for context,” declaimed the minority, “risks introducing the vice of formalism into the law of judicial review.” (para 70)

I would side with the minority and the lower courts here, and say that it was wrong or unreasonable—choose your standard—to let the City convert a taxpayer’s (ratepayer’s) complaint into a de novo appeal of its own assessment. Municipalities have the opportunity to annually assess properties and, on notice, to correct errors in those assessments. All of this is provided for in assessment regimes such as the Municipal Government Act that was in issue in these proceedings. But here, the Board considered a different assessment than the one complained of, essentially allowing the City to act as an appellant or cross-complainant in the case. The effect of the ruling is to thwart certain protections that the statute gives to assessed persons, such as the provision that an assessor must not correct or change an assessment while a complaint is pending.

I have provided only a high-level outline of the case, and devotees of administrative law will want to read the details of both the majority and minority decisions. For now, though, while the “majority rules,” I find solace in knowing that nine of the 14 judges who considered the case—the leave judge, the chambers judge, three judges of the Court of Appeal, and four judges of the full Supreme Court bench—reached essentially the same conclusion, even though the case was argued differently at various stages (for example, the earlier decisions cast the issue as going more to jurisdiction than standard of review).

But that raises another question: why should it take 14 judges and five years of litigation to resolve a dispute that could have been forestalled, or at least narrowed, through appropriate legislative drafting? The scenario that unfolded here could have been dealt with under the Board’s own statute (in fact, an extensive review of the statute is underway, and is likely to include a new provincial assessment regime). Even more generally, this could have been legislated as a matter of tribunal law, as British Columbia has done with its Administrative Tribunals Act. Part 9 of that act specifies the standard of review for tribunal decisions both where a privative clause exists and where it doesn’t. In the latter case, the standard is “correctness for all questions except those respecting the exercise of discretion, findings of fact and the application of the common law rules of natural justice and procedural fairness.” Further guidance on what that means is provided in accompanying statutory wording. Until more provinces take such legislative steps, we can expect to see the great passion of Canadian law continue to play out in our courts with some regularity.

Comments

  1. I think the decision was both a reasonable and correct purposive
    interpretation of taxation legislation in the context of big business
    dealings in commodity real estate – if you consider the insufficiency
    of reasons as NOT amounting to unreasonableness.

  2. Mr Semenoff: So you’d interpret the legislation differently if it had been, say, the proverbial widow caught in the City’s squeeze play? Treat widows and orphans differently than the moneyed class, would you? What happened to the rule of law in your conception? Treating all people – more precisely, all legal persons – equally?
    I’m going to close off the possibility of a “it was a corporation, not a real person” reply by any reader by stipulating that the proverbial widow owned the property through a corporation.

  3. John,

    Ah yes, the vice (g) of formalism. We can’t claim the SCC has ever allowed itself to fall into that vice, can we?

    That aside, you’re being slightly unfair to the minority by not quoting completely the paragraph in which the minority declaimed on the “vice of formalism”, so I’ll redress the balance.

    [70] We agree that a statutory right of appeal is not a new “category” of correctness review. However, the ostensibly contextual standard of review analysis should not be confined to deciding whether new categories have been established. An approach to the standard of review analysis that relies exclusively on categories and eschews any role for context risks introducing the vice of formalism into the law of judicial review, as it seeks to “secure a measure of certainty or predictability at the cost of blindly prejudging what is to be done in a range of future cases, about whose composition we are ignorant”: H. L. A. Hart, The Concept of Law (3rd ed. 2012), at pp. 129-30.

    Really now, how can one take issue with an argument supported by a reference to that book?

    Funnily (is that a word?) I attended a lecture, yesterday, in Oxford about the problem of formalism in judicial reasoning albeit in the tort context. “Public Policy’ in Judicial Reasoning in Tort: Form or Substance.” The writer didn’t mention Edmonton City </i). You probably saw the advert for it. And, as it happens, I attended an appreciation of HLA Hart last week at Brasenose. The speakers were John Gardner, Les Green and Nicola Lacey. Some of the audience, in their questions, had the background to be able to, and did, refer to him as Herbert. (Hey: when you're a Jewish boy in the Brasenose Chapel, I suppose you've earned the right to have somebody refer to you by your first name.)

    Cheers,

  4. (Sigh) – the software doesn’t allow me to edit my comment, to fix the italics. They were supposed to start and stop with “Edmonton City”; however, I somewhat like the implication of importance given by having the rest in italics. (But you or SM can: please fix the case title reference so that it’s Edmonton (City) .)

    More to the point, though, is that I have to crate another comment to complete the last comment.

    What’s missing is: In any event, at least the dissent chose a high-minded text to refer to rather than something more low-brow? popular? that might expose them to the critique of being witty for wit’s sake: say another text of hockey. I mean, given the composition of the minority, there’d be a basis for references to at least the Habs, Leafs, Oilers and Canucks.

    David

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