2005 BCSC 144 Children's Arts Umbrella Assocation v. Assessor of Area 9

Before: The Honourable Mr. Justice Bauman

Reasons for Judgment

Counsel for the Petitioner	J. R. Singleton, Q.C.
Counsel for the Respondent	J. A. McLachlan
Date and Place of Trial/Hearing:	4 November 2004
	Vancouver, B.C.

[1] The petitioner seeks judicial review of a decision of the Property Assessment Appeal Board (the "Board") not to state a requested case pursuant to s. 65(4) of the Assessment Act, R.S.B.C. 1996, c. 20 (the "Act").

[2] The Board rendered a decision dated 12 March 2004. That decision upheld the assessor's reclassification of the petitioner's property from its previous class (one attributable to a non-profit organization) to the category "business and other".

[3] Section 65 of the Act sets out the detailed procedure for appeals to this court from the Board by way of stated case.

[4] It provides:

Appeal of board decision on question of law

65 (1) Subject to subsection (2), a person affected by a decision of the board on appeal, including a local government, the government, the commissioner or an assessor acting with the consent of the commissioner, may require the board to refer the decision to the Supreme Court for appeal on a question of law alone in the form of a stated case.

(2) Within 21 days after receiving the decision referred to in subsection (1), the person must deliver to the board a written request to refer the decision to the Supreme Court, and include in the request the question of law to be referred.

(3) On receipt of the request under subsection (2), the board must promptly provide written notice of the request to

(a) the parties to the appeal from which the reference is requested and any intervenors, and

(b) the commissioner, if the commissioner was not a party.

(4) Within 21 days after receiving the request under subsection (2), the board must file the stated case with the court registry, including the decision on appeal, a statement of the facts and all evidence material to the stated case.

(5) The stated case must be brought on for hearing within one month from the date on which it is filed under subsection (4).

(6) Subject to subsection (7), the court must hear and determine the stated case and within 2 months give its decision.

(7) The court may send the stated case back to the board for amendment and the board must promptly amend and return the stated case for the opinion of the court.

(8) The costs of, and incidental to, a stated case under this section are at the discretion of the court.

(9) An appeal on a question of law lies from a decision of the Supreme Court to the Court of Appeal with leave of a justice of the Court of Appeal.

(10) The board must direct the assessor to make any amendment to the assessment roll necessary to give effect to a decision made by the Supreme Court or the Court of Appeal under this section.

[5] The petitioner had always intended to appeal the Board's decision and its counsel set about to comply with s. 65(2) well within the 21 day appeal period. Unfortunately, the letter to the Board doing so was not faxed to the Board, although staff in counsel's office believed that it had been. The oversight was purely accidental.

[6] The petitioner's position excites all of our sympathy.

[7] The Board was unmoved, however, and it ruled:

The combined effect of subsections 65(1), (2) and (4) is that if the request to state a case is not delivered to the Board within 21 days of receiving the Board's decision, no right of appeal arises. And if no right of appeal arises, then the Board need not state the case requiring the Court to make a determination that it has no jurisdiction.

[8] Instead of filing the case and letting the court determine if it had jurisdiction, the Board found that the legislation "does not require the board to file the stated case if it does not meet the mandatory requirement that it be delivered within 21 days of receiving the board's decision."

[9] Because it is common ground that the standard of review in respect of a decision of the Board like that at bar is that of correctness, I will not embark on the traditional functional and pragmatic approach to that determination.

[10] The learned Chair of the Board, Cheryl Vickers, considered many of the cases cited before me. The cases include:

British Columbia (Assessor of Area No. 8 - North Shore - Squamish Valley v. General Equities of Canada, [1994] B.C.J. No. 3002 (QL) (S.C.)

British Columbia (Assessor of Area No. 13 - Dewdney-Alouette) v. Maple Ridge (District), [1990] B.C.J. No. 789 (QL) (S.C.)

GDP Investments Ltd. v. British Columbia (Assessor of Area No. 5 - Port Alberni), [1999] B.C.J. No. 3148 (QL) (S.C.)

Genstar Ltd. v. Mission (District), [1981] B.C.J. No. 493 (QL) (S.C.)

Genstar Ltd. v. Mission (District), [1982] B.C.J. No. 1846 (QL) (S.C.)

Maple Ridge (District) v. British Columbia (Assessor of Area No. 13 - Dewdney/Alouette), [1991] B.C.J. No. 2906 (QL) (C.A.)

Sunshine Valley Developments Ltd. v. British Columbia (Assessor of Area No. 16 - Chilliwack), [1989] B.C.J. No. 2078 (QL) (S.C.)

Trizec Equities Ltd. v. British Columbia (Assessor of Area No. 9 - Vancouver), [1986] B.C.J. No. 2291 (QL) (S.C.)

[11] The central issue before the Board and this court is whether the requirement in s. 65(2) is mandatory, or directory. If it is the latter, of course, good faith appellants who inadvertently stumble in complying with the requirements for an appeal may nevertheless be permitted to proceed.

[12] Chair Vickers summarized the competing authorities so:

Trizec, General Equities, and GDP, supra were all cases where the Appellant failed to deliver a request to state a case to the Board within 21 days of receiving the Board's decision. The Board filed the stated case in any event, and in each case the Court held it did not have jurisdiction.

Section 65(1) of the Act provides a statutory right of appeal on a question of law from a decision of the Board. That right is, however, expressly "subject to" the requirements of 65(2). Section 65(2) provides that a person must deliver a written request to state a case to the board within 21 days of receiving the decision to be appealed. The combined effect of 65(1) and 65(2) is that the right to appeal on a question of law does not arise where the person fails to deliver a written request to state a case within 21 days of receiving the Board's decision. The right to appeal granted by section 65(1) is lost if the mandatory procedure set out in section 65(2) is not complied with. Trizec, General Equities, and GDP, supra would appear to support this interpretation.

Genstar and Sunshine Valley, supra did not involve the failure to deliver the request to state a case within 21 days of receipt of the Board's decision. In Genstar the Appellant failed to provide a copy of the request to state a case to the other party, but had provided it to its solicitor, and in Sunshine Valley, the Assessor sought to add questions to the stated case after the Appellant had delivered their request to state a case and set out their questions of law. The Court found in both cases that it did not lose jurisdiction. In Maple Ridge, the Court found it did not have jurisdiction to hear the Stated Case because the Appellant had not obtained the necessary resolution of its council. These cases are distinguishable on their facts from the Trizec, General Equities, and GDP line of authorities.

[13] In my view, Chair Vickers is entirely correct in her analysis. There is little to add.

[14] I do note that in Sunshine Valley, the late Justice McColl recognized that the case before him did not involve an elementary failure to comply with what is now s. 65(2):

In the present case, unlike that under consideration in Re Anchor [Re Anchor Ventures Inc. v. Assessor of Area 04 - Nanaimo-Cowichan (15 June 1988), Reg. No. VI 00634 (B.C.C.A.)], there is no doubt that the stated case was filed in the Supreme Court within the time limits set out under the Act and was before this Court within those time limits. The jurisdiction of this Court to answer the stated case cannot therefore be doubted. The failure to meet time limits is not in the filing of the stated case nor in the hearing of the matter in this Court within the time limits specified by the statute but rather in the first instance in the failure of the Respondent to request of the Board the issuance of a stated case on its behalf.

[15] In Re Anchor, there was a failure by the secretary of the Board to comply with then s. 74(5) of the old Act:

(5) Where a case is stated, the secretary of the board shall promptly file the case … in the Supreme Court Registry, and it shall be brought on for hearing … within one month from the date on which the stated case is filed.

[16] The Court of Appeal drew on the distinction noted in R. v. Bourassa, infra, and noted:

In view of the fact that the time requirement of s. 74(5) could be and indeed was performed by the respondent Assessor, who was the appellant in the stated case, and a person directly in control of the matter, I consider this particular time requirement to be mandatory within the contemplation of the principle as set out in Regina v. Bourassa, [1972] 1 W.W.R. 285. In that case Branca J. A. said at p. 287:

It will be noted that when one applies for a stated case he is powerless to compel the Court to state the case unless, under the provisions of s. 738 of the Code, the summary convictions court refuses to state the case. In the instant case there was no refusal on the part of the summary convictions court and therefore the applicant was powerless to compel the summary convictions court to state the case in compliance with the statutory conditions.

So that, in effect, if the learned trial Judge was correct, an appellant who has impeccably discharged all conditions imposed by law and within his power to discharge becomes chargeable with a default if some other functionary over whom he has no control fails to conform with conditions which only such functionary can discharge and which will in turn completely defeat his purpose.

Branca J. A. went on to state at p. 289:

The series of cases starting with Ritholz, above referred to, and Moore v. Hewitt, in my judgment correctly state the law, and consequently the section in question is mandatory in the sense that it contains conditions precedent to the vesting of jurisdiction only insofar as acts to be done by the appellant are concerned. However, where the acts to be performed are not discharged in accordance with the statutory requirements due to the sole fault of others, the terms of the section are directory only and not imperative, in which event the Supreme Court is free to hear the appeal by way of a stated case despite the fault involved.

Thus, failure to comply in the present case results in a loss of jurisdiction. I would not adopt the interpretation of Meredith J. in Calona Wines Ltd. v. Assessor of Area 19 - Kelowna, Stated Case 121, September 30, 1985, nor do I find helpful the other cases cited to us dealing with limitation provisions other than the one which we have under consideration here as those limitation provisions are of a different character or nature than the one at issue here.

[17] This reasoning explains decisions like Assessment Commissioner v. Woodward Stores Ltd. (1981) Stated Case 142 (B.C.S.C.) and Tiberon Investments Inc. v. British Columbia (Assessor of Area No. 01 - Saanich-Capital), [1985] B.C.J. No. 214 (QL) (S.C.), (the requirement to state a case within the time limited, so far as the appellant is concerned, is mandatory).

[18] I am not faced with a fresh enquiry as to whether s. 65(2) is mandatory or directory. If I was, the cases cited by the petitioner, including B.C. (A.G.) v. Canada (A.G.), [1994] 2 S.C.R. 41, would undoubtedly assist me in construing the legislation.

[19] I am rather, as was Chair Vickers, faced with and assisted by binding authority that supports the mandatory nature of the requirements like that in s. 65(2) and rationalizes and distinguishes the cases that might suggest otherwise.

[20] The petition is dismissed. The respondent is entitled to its costs on Scale 3.

“R.J. Bauman, J.”
The Honourable Mr. Justice R.J. Bauman

Citation:	*Children's Arts Umbrella Assoc. v. Assessor of Area 09 - Vancouver,*
	2005 BCSC 144