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.