ANN and THOMAS HENNESSY ASSESSOR OF AREA 01 - CAPITAL. Supreme Court of British Columbia (A950898) Vancouver Registry

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1 The following version is for informational purposes only, for the official version see: for Stated Cases see also: for PAAB Decisions SC 367 Ann & Thomas Hennessy v. AA01 Quick Link to Stated Case #367 (Leave to Appeal) Quick Link to Stated Case #367 (BCCA) ANN and THOMAS HENNESSY v. ASSESSOR OF AREA 01 - CAPITAL Supreme Court of British Columbia (A950898) Vancouver Registry Before the HONOURABLE MADAM JUSTICE NEWBURY (in chambers) Manuel A. Azevedo for the Appellants Guy E. McDannold for the Respondent Vancouver, June 30, 1995 Classification -- Bed and Breakfast Operation -- Residential Ancillary Improvements Compatible With and Used in Conjunction With Tourist Related Activities -- Business and Other The Appellants own 20 acres of waterfront property on Galiano Island. Four acres was developed into a home site with the balance heavily forested. Eight rooms in the main house and 8 cabins were operated as a bed and breakfast with full meal service for the guests. The Appellants also operated a kayak rental business, conducted nature seminars and other tourist related activities using the house as the base of operations. The Assessment Appeal Board granted the Assessor's application to reclassify a portion of the land and improvements from Class 1 - Residential to Class 6 - Business and Other. The Appellants proceeded on Stated Case to argue that the Board had erred in granting the Business classification to a portion of the property. HELD: Appeal Allowed in part. 1. The bed and breakfast operation should be classified as Class 1 - Residential. The phrase "used for residential purposes" includes persons in residence for one or more nights whether in the main house or in surrounding cabins or cottages, provided the operation does not constitute a hotel or motel which is specifically excluded from the residential classification. 2. The portion of the Appellant's land or improvements devoted to revenue raising activities separate from normal residential activity i.e. kayak rentals are properly classified as Class 6 - Business and Other and cannot be regarded as ancillary to residential use. Reasons for Judgment July 7, 1995

2 Mr. and Mrs. Hennessy are the owners of 20 acres of waterfront property on Galiano Island. The improvements on the property consist of a 2,650 square foot wood frame house built in 1928 which features eight bedrooms and an attached dining room, plus eight small cabins and a shower house. The Hennessys (and presumably their family) live in the house all year round, but for eight months of the year they also operate a bed and breakfast for guests who stay in the extra bedrooms in the house or in the cabins. In addition, they rent kayaks and conduct nature seminars for their guests, using the house as their "centre of operations". The property is zoned R1 rural, a classification that permits bed and breakfast operations having up to three guest bedrooms. The Appellants are able to operate the number of guest rooms and cabins they do because their "heritage guest house" has "non-conforming use" status. This would be lost if they ceased operating for six months or more. Until recently, the property was assessed as "Class 1 - Residential" as that term is defined in Section 1(a) of B.C. Reg. 438/81. Evidently, the local Assessor determined in 1993 that the value of the Hennessys' property had increased from its previously assessed value, based on very dramatic increases in the market prices of comparable properties in the area over recent years. She valued the land at $628,000 and the improvements at $66,000, for a total of $694,000 as at July 1, She also determined that the property should be reclassified from "Residential" (Class 1) to partly "Residential" and partly "Business and Other" (Class 6). From her testimony before the Assessment Appeal Board, it appears that although no other bed and breakfasts on the Island are classified as "Business and Other", the Assessor initiated the reclassification of the Appellant's property because of its status as a non-conforming use for zoning purposes. (Transcript, p. 91.) Her valuation of the property and her reclassification and allocation of the value, based on 90% Class 1 use and 10% Class 6 use for the land, and 50% Class 1 use and 50% Class 6 use for the buildings, were upheld by the 1994 Court of Revision. Mr. and Mrs. Hennessy appealed to the Assessment Appeal Board on the questions of valuation and classification. On the latter topic, the Board said it was "satisfied that the properties being put to uses other than those prescribed under Class 1" and allowed the Assessor's request for reclassification. The Appellants now appeal by way of Stated Case from that decision, pursuant to Section 74 of the Assessment Act. On this occasion, they raise for the opinion of this Court the following questions: "1. Did the Board err in interpreting Section 1(a) of Part I, Prescribed Clauses [sic; Classes] of Property Regulation, B.C. Regulations 438/81? 2. Did the Board err in law by deciding that 5 days oral notice to change classification was adequate notice? 3. Did the Board err in law by making findings of facts unsupported by evidence?" Mr. Azevedo advised at the start of this hearing that he was abandoning Question 2. Mr. McDannold for the Assessor took issue with Question 3 on the basis that it was "so broad as to not raise a question of law and accordingly is beyond the jurisdiction of the court to hear on a Stated Case appeal". He noted that the weight and sufficiency of evidence are questions of fact for the Board -- a statement that cannot be doubted on the authorities -- and said that Question 3 had failed to raise any specific allegation in which the Board acted without evidence. In his submission, the question was similar to one considered in Cominco Ltd. v. Assessor of Area 18 (Trail) (Vancouver Registry No. C825183, dated October 12, 1982) where the Court was asked whether the Board had erred "by determining that all of the items were properly assessable against the Appellant". Esson, J. (as he then was) found that the question really amounted to asking, "Was the decision right?", and since no question of law was raised, the stated question was held to be outside the Court's jurisdiction.

3 Question 3 in the instant case is at least a question of law, but framed as it is, it would require the Court to review every finding of fact made by the Board to see if it was supported by any evidence. It was perhaps for this reason that Mr. Azevedo restated Question 3 in his chambers brief to refer to a "finding" that "10% of the subject land was used for business purposes, and that 50% of the improvements were so used" -- even though there is no express finding to this effect in the Board's decision. It is not open to this Court, however, to reframe the questions in a Stated Case. Thus Question 3 cannot be amended by this Court or by Mr. Azevedo at this stage and remains so vague that it may not be properly considered by this Court pursuant to Section 74 of the Act. This leaves Question 1 as the question of substance in this case. With respect, it too could have been framed more felicitously. It refers to the Board's "interpreting" Section 1(a) of the Regulation, but if "interpretation" here is intended to mean "reasoning", the Board's decision contains no reasoning either on the subject of classification or of allocation. Indeed, under the heading "Classification" the Board simply states that it has very broad jurisdiction, deals with the argument concerning insufficient notice, and then states its conclusion -- that it is satisfied that the property is being put to uses other than those prescribed under Class 1. Nor do the reasons contain any findings of fact as to how much of the land and buildings should be classified as Residential and how much as Business and Other: the Board simply denies the Hennessys' appeal. I take it, however -- and counsel before me proceeded on this basis -- that Question 1 used the word "interpreting" fairly loosely and that it was intended to raise whether the Board had erred in concluding that the Appellants' property was being used in part for non-residential purposes -- or put another way, whether it erred in "interpreting" Section 1(a) as excluding some of the uses to which the property is being put -- and whether it had erred in concluding that the appropriate 'split' was 90/10 in respect of the land and 50/50 in respect of the improvements. In considering these questions I accept Mr. McDannold's argument that the Court has a very restricted roll in an appeal by way of Stated Case: CNR v. Assessor of Area 9 (Vancouver Registry No. CA010860, dated March 13, 1990), District of Tumbler Ridge v. Assessor of Area 27 (B.C.S.C., Vancouver Registry No. A851790, dated December 2, 1995) and Trustee Board of the New Vista Society v. Assessor of Area 10 (B.C.C.A., Victoria Registry No. CAV01325, dated May 11, 1992). An appeal may be allowed only if it is found that the Board erred in law in reaching its conclusion as to the classification of the property or if there was no evidence to support the 'split' classification it endorsed. If there was any such evidence, the Board's finding may not be interfered with by this Court: see District of Tumbler Ridge, supra, at 3. Use Classification Mr. Azevedo for the Appellants relied on the phrase "and ancillary improvements compatible with and used in connection with any of the above" in Section 1(a). In his submission, this wording indicates that all land and improvements on a parcel of property are to be classed as Residential "even if they are not residential by nature, so long as they are subordinate or auxiliary to a residential use, and can comfortably co-exist with a residential use." Further, he said, the cabins and shower house are "crucial elements" of the lodge and are subordinate to and compatible with the use of the property as a residence. As for the house or "lodge" itself, the Appellants live in it throughout the year and the function of lodging guests is "both subordinate to and compatible with its use as a principal residence". Mr. McDannold for the Board argued on the other hand that the Court must consider all the classifications contained in the Regulation -- not only Class 1 -- and that there was evidence before the Board to support the conclusion that part of the property was being used for non- Residential purposes. He says that the "types of businesses" being conducted by the Appellants - the provision of full-meal service for guests of up to eight lodge rooms and eight cabins, the

4 operation of a kayak rental business, and the conducting of nature seminars and related tourist activities -- do not fall within Class 1 or any of the other classifications and were therefore properly classified as "Business and Other", the 'catch all' category. Mr. McDannold also took issue with Mr. Azevedo's contention that any doubt in the construction of a taxing statute such as the Assessment Act should be resolved in the taxpayers' favour. He notes that this approach has been long since discredited by the Supreme Court of Canada in decisions such as CUQ v. Corp Notre-Dame de Bon-Secours [1994] 3 S.C.R. 3, and Stubart Investments Ltd. v. The Queen [1984] 1 S.C.R Those judgments indicate that a taxing statute, like all other statutes, should be construed in accordance with the ordinary rules of interpretation and that courts should attempt to identify the intent or purpose of legislative provisions rather than rely on "predetermined presumptions". (See in particular CUQ v. Corp Notre-Dame de Bon-Secours, supra, at 20.) With this in mind, I turn to the relevant provisions of Regulation 438/81, which are as follows: "1. Class 1 property shall include only (a) land or improvements, or both, used for residential purposes, including single family residences, duplexes, multi-family residences, apartments, condominiums, manufactured homes, nursing homes, rest homes, summer and seasonal dwellings, bunkhouses, cookhouses and ancillary improvements compatible with and used in conjunction with any of the above, but not including (i) hotels or motels other than the portion of the hotel or motel occupied by the owner as his residence... (b) improvements on land classified as a farm and used in connection with the farm operation, including the farm residence and outbuildings; (c) land having no present use and which is neither specifically zoned nor held for business, commercial, forestry or industrial purposes; (d) land or improvements, or both, used for child daycare purposes... Class 6 - Business and Other Class 6 property shall include all land and improvements not included in classes 1 to 5 and 7 to Split Classification 10. Where a property falls into 2 or more prescribed classes, the assessor shall determine the share of the actual value of the property attributable to each class and assess the property according to the proportion each share constitutes of the total actual value." I also note that Class 8 property is said to include "land, but not improvements on the land, used solely as an outdoor recreational facility" for certain listed activities, but that those do not include the rental of boats or anything akin thereto. In my view, the inclusion in Class 1 of seasonal dwellings, bunkhouses and cookhouses indicates an intention on the part of the Legislature to encompass the use of property for the accommodation of non-permanent guests, a conclusion reinforced by the fact that the Legislature

5 felt it necessary to exclude hotels and motels expressly. Further, the phrase "used for residential purposes" when given its ordinary grammatical meaning seems broad enough to include persons in residence for one or more nights, whether in the main house or in surrounding cabins or cottages, provided the operation does not constitute a hotel or motel. Indeed, the main attraction of a bed and breakfast establishment is that the guest is welcomed into the home of another, rather than shunted into a room and offered various goods and services available only to paying customers in a commercial environment. If this is correct, then in my view the Board fell into error in construing (as it seems to have done) Class 1 as excluding those portions of the improvements as guest rooms or cabins and those portions of the land available for enjoyment and use by guests in the same way they are available to persons permanently residing on the property. (See also Assessment Commissioner of British Columbia v. LeChasseur (B.C.S.C., Victoria Registry No. 81/1511, dated September 24, 1981).) On the other hand, the Appellants' devotion of a portion of their land or improvements to kayak rental operations or other revenue-raising activities separate from normal residential activities cannot in my view be regarded as ancillary to residential use. Thus I agree that the classification of some portion of the Appellants' property as Class 6 was justified on a reading of the Regulation. Allocation of Uses Unfortunately, the Board did not indicate the basis on which it reached its allocation between Classes 1 and 6. Mr. Hennessy was asked what portion of the 20 acres were occupied by "the improvements" and he guessed approximately one acre. Mr. Hitchcock, the Area Assessor, was asked the following questions on the point of allocation and gave the following answers: Mr. Fraser: "Just one question. Your split is based on - the land split for classification is based on 4 acres being available for commercial purposes for some point in time. We have heard from the Appellant that his estimate of the home site was one acre. It seems pretty large disparity for estimating, so on what basis did you establish the 4 acres? A. What I am suggesting is that a guest at the lodge could use the area and would use the area immediately around the house and the homesite and also has available the area of the rest of the parcel that is 20 acres. I chose to use four acres. Mr. Fraser: So it doesn't reflect a four-acre clearing or a pasture or lawns areas or recreational areas or... A. That's correct." From this it appears that the Assessor's split was not based on any attempt to estimate what proportion of the Appellants' property is used for kayak rentals or other non-residential purposes. Instead, it appears the Assessor was attempting to estimate the portion of the grounds that were available for "use" by guests of the lodge -- perhaps simply by walking around the grounds on a warm summer's evening. With respect, I cannot agree that such use falls outside the description of "Residential" provided by the Regulation. If the Assessor were correct, then almost every bed and breakfast operation would have to be classed as "Business and Other" since most guests are free to "use" the grounds in this way, which is the same way that permanent residents of such establishments normally "use" the property, i.e. ancillary to residential purposes. I have already found that such uses fall within Class 1. One is left, then, with the Assessor's final allocation of a 90/10 split for the land and a 50/50 split for the improvements. I was not referred to any evidence on which that split was founded, and it is

6 not consistent with the Assessor's own "guess" that four of the 20 acres were available for the use of guests. It seems to me therefore that the Board did err in interpreting Section 1(a) of the Regulation to exclude normal "bed and breakfast" type uses or activities and in reaching the "split" result it did without having any evidence before it as to the proportion of the land and improvements that are used for non-residential uses such as kayak rentals. Thus I would answer Question 1 in the affirmative and remit the case back to the Board to decide the appeal in accordance with this opinion. Unless counsel wish to make submissions, the Appellants will have their costs on the usual scale. SC 367cont Ann & Thomas Hennessy v. AA01 (Application for Leave) ANN and THOMAS HENNESSY v. ASSESSOR OF AREA 01 - CAPITAL British Columbia Court of Appeal (VI02656) Victoria Registry Before the HONOURABLE MADAM JUSTICE PROUDFOOT (in chambers) G.E. McDannold for the Appellant (Respondent) M. Azevedo for the Respondents (Appellants) Factors Affecting Costs on Appeal Vancouver, September 15, 1995 The Assessor sought Leave to Appeal. The Appeal was of significance to the Assessor but of little monetary value for the property owners. HELD: Leave to Appeal granted on the condition that if the Assessor succeeds he would not claim costs in the Court of Appeal, and if he fails, the property owner would be entitled to costs on a solicitor/client basis. Reasons for Judgment (Oral) September 15, 1995 This is a matter of a leave to appeal a Supreme Court Judge's decision differing with the Assessment Appeal Board. I am satisfied that there is some merit in the appeal. In other words I cannot say that there is no merit in the appeal, a question of law is involved. A question of the interpretation of classification. I am not suggesting that it is a very strong case but at the same time I am not saying that there is no merit in the case. I also find some support in the decision of Mr. Justice Lambert where he expresses an opinion if there is a difference of opinion between the Board and a Supreme Court Judge. See Assessor of

7 Area 08 - North Shore/Squamish v. International Paper Industries Ltd. (24 May 1995) CA Vancouver Registry (B.C.C.A.). Mr. Justice Lambert says that when there is such a difference of opinion between the Assessment Appeal Board and the Supreme Court Judge one should consider that and I do consider that. In this particular instance the appeal is of little monitory value as far as the Hennessys are concerned, the Respondents, but it is I am told by the Appellant's counsel of a tremendous value to his clients. Accordingly, I am going to follow the procedure which was initiated by Madam Justice Southin in Galloway Lumber Co. v. Assessor of Area 22 - East Kootenay (1988) 33 B.C.L.R. (2d) 114. There she deals with this on a question of costs and she says: I inquired of counsel if I had power to impose terms if I granted leave. Both counsel took the position that I did. Therefore, the assessor will have leave to appeal if he accepts: 1. if he succeeds, he will not claim costs in this court; 2. if he fails, the respondent will be entitled to costs on a solicitor-client basis. If the assessor does not accept these terms, the application is dismissed. SC 367cont Ann & Thomas Hennessy v. AA01 (BCCA Decision) ANN and THOMAS HENNESSY v. ASSESSOR OF AREA 01 - CAPITAL British Columbia Court of Appeal (VI02656) Victoria Registry Before the HONOURABLE MR. JUSTICE LEGG, the HONOURABLE MR. JUSTICE CUMMING, and the HONOURABLE MADAM JUSTICE HUDDART G.E. McDannold for the Assessor of Area 01 Capital M. Azevedo for Ann and Thomas Hennessy Vancouver, June 28, 1996 Classification -- Bed and Breakfast Business -- Residential Jurisdiction of the Court on a Stated Case Hearing -- Allocation of Actual Value This appeal concerns the interpretation and application of B.C. Reg. 438/81, the Prescribed Classes of Property Regulation. On appeal the BCSC held that the classification of an operation consisting of a heritage guest house, 8 cabins and a kayak rental business, should be split between Class 1 and Class 6. The Supreme Court characterized the guest house and the cabins as a "bed and breakfast" that did not constitute a hotel or motel. Consequently Class 1 was appropriate as they were being used for "residential purposes". The portion of the operation devoted to revenue raising activities separate from residential activity should be Class 6. Consequently, the kayak rental area should be Class 6. The Assessor appealed this decision.

8 HELD: 1. Assessor's appeal allowed and Question #1 of the Stated Case answered in the negative; 2. The Supreme Court Chambers Judge exceeded the Court's jurisdiction on a Stated Case when she characterized the use of the land and improvements as a "Bed and Breakfast" operation, that did not constitute a hotel or motel, contrary to the facts found by the Assessment Appeal Board; 3. There was evidence before the Board to support its finding of fact that the guest house is a hotel or motel, a portion of which is occupied by the owners and their family, and was properly classified Class 6 - Business and Other rather than Class 1 - Residential; 4. Part of the Assessor's duty under Section 10 of Regulation 438/81 is to apply appraisal judgment to arrive at the share of actual value to be attributed to each classification. The weight and sufficiency of such evidence are matters of fact for the Assessment Appeal Board. Reasons for Judgment (Oral) June 28, 1996 HUDDART, J.A.: This appeal concerns the interpretation and application of Regulation 438/81 made pursuant to the Assessment Act. That regulation prescribes classes of property for the purpose of determining the appropriate rate of tax to be paid on the land and improvements. The subject property is situated on a 20-acre lot with 726 feet of waterfront on Montague Harbour at the south end of Galiano Island. About four acres have been developed into a home site, with yard and gardens. The balance is heavily forested. A hydro easement runs across the property parallel to the waterfront. The improvements consist of a 2,650 square foot, wood frame, singlefamily dwelling, constructed in 1928, with eight bedrooms, three full bathrooms, and an attached dining hall. Eight small uninsulated cottages of the same approximate age, a shower house with a laundry, shower, sinks and toilets are also located on the land. The R1 (Rural) zoning permits single-family dwellings and bed and breakfast operations to a maximum of three rooms. Lot sizes are restricted to a three-acre minimum. A septic tank and field is required. The property is a legal, non-conforming "Heritage Guest House". The Respondents provide full meal service for the guests of up to eight lodge rooms and eight cabins. The Respondents also operate a kayak rental business, and conduct one and two day nature seminars and other touristrelated activities, using the guest house as the base of operations. The question that confronted the Board on the Respondents' appeal from the decision of the 1994 Court of Revision was whether the Assessor's request to re-classify their land and improvements should be approved. The Assessor sought to apportion the actual value between Class 1 and Class 6. The Board found that the property is being put to uses other than those prescribed under Class 1 - Residential, allowed the Assessor's request for reclassification, approved his apportionment, and ordered the Assessor to amend the Roll accordingly. At the request of the Respondents, the Board stated three questions under section 74(1) of the Assessment Act. Only one is relevant to this appeal. It is this:

9 "1. Did the Board err in interpreting Section 1(a) of Part I, Prescribed Clauses [sic; Classes] of Property Regulation, B.C. Regulations 438/81?" The provisions relevant to the opinion read: "1. Class 1 property shall include only Class 6 - business and other (a) land or improvements, or both, used for residential purposes, including single family residences, duplexes, multi-family residences, apartments, condominiums, manufactured homes, nursing homes, rest homes, summer and seasonal dwellings, bunkhouses, cookhouses and ancillary improvements compatible with and used in conjunction with any of the above, but not including (i) hotels or motels other than the portion of the hotel or motel occupied by the owner as his residence... (c) land having no present use and which is neither specifically zoned nor held for business, commercial, forestry or industrial purposes; (d) land or improvements, or both, used for child daycare purposes Class 6 property shall include all land and improvements not included in classes 1 to 5 and 7 to Split classification 10. Where a property falls into 2 or more prescribed classes, the assessor shall determine the share of the actual value of the property attributable to each class and assess the property according to the proportion each share constitutes of the total actual value." The chambers judge answered the question "Yes", explaining: In my view, the inclusion in Class 1 of seasonal dwellings, bunkhouses and cookhouses indicates an intention on the part of the Legislature to encompass the use of property for the accommodation of non-permanent guests, a conclusion reinforced by the fact that the Legislature felt it necessary to exclude hotels and motels expressly. Further, the phrase "used for residential purposes" when given its ordinary grammatical meaning seems broad enough to include persons in residence for one or more nights, whether in the main house or in surrounding cabins or cottages, provided the operation does not constitute a hotel or motel. Indeed, the main attraction of a bed and breakfast establishment is that the guest is welcomed into the home of another, rather than shunted into a room and offered various goods and services available only to paying customers in a commercial environment. If this is correct, then in my view the Board fell into error in construing (as it seems to have done) Class 1 as excluding those portions of the improvements as guest rooms or cabins and those portions of the land available for enjoyment and use by guests in the same way they are available to persons permanently residing on the property. (See also Assessment Commissioner of British Columbia v. LeChasseur (B.C.S.C., Victoria Registry No. 81/1511, dated September 24, 1981).)

10 On the other hand, the appellants' devotion of a portion of their land or improvements to kayak rental operations or other revenue-raising activities separate from normal residential activities cannot in my view be regarded as ancillary to residential use. Thus I agree that the classification of some portion of the appellants' property as Class 6 was justified on a reading of the Regulation. She went on to discuss the Board's allocation of the land and improvements where property falls into two or more classes, and concluded: It seems to me therefore that the Board did err in interpreting Section 1(a) of the Regulation to exclude normal "bed and breakfast" type uses or activities and in reaching the "split" result it did without having any evidence before it as to the proportion of the land and improvements that are used for non-residential uses such as kayak rentals. Thus I would answer Question 1 in the affirmative and remit the case back to the Board to decide the appeal in accordance with this opinion. The Appellant asks this Court to uphold the Board's findings and answer the question in the negative. The first three grounds of appeal raise the issue of the proper role of the Supreme Court on the hearing of a Stated Case and the interpretation of the Regulation. The general principles for the Court to follow on hearing a Stated Case are well-settled. The questions must be questions of law only. The appellate court must confine itself to the facts in the Stated Case, although it is permitted to refer to the reasons for decision and it may refer to the transcript of evidence only for the purpose of interpreting or explaining the Stated Case. Caldwell v. Stuart, [1984] 2 S.C.R. 603 (S.C.C.) per Mr. Justice McIntyre at ; Assessor of Area 01 - Saanich/Capital v. Hardt et al 4 B.C.A.A. Stated Case 302 (B.C.C.A.). The construction of an enactment is, of course, a question of law. However, the question of whether "the particular matter or thing is of such a nature or kind as to fall within the legal definition of its term" is a question of fact: Tisdale v. Hollinger Consolidated Gold Mines, [1933] S.C.R. 321 at 323. Here, the Board found as a fact that the business operated by Mr. and Mrs. Hennessy was a heritage guest house permitted to provide full meal service for the guests occupying eight lodge rooms and eight cabins. The Board did not find as a fact that the Respondents were operating a non-conforming bed and breakfast, although the Assessor at times in his testimony referred to the property as a bed and breakfast, and such an expression is used in the zoning bylaw. Mr. and Mrs. Hennessy did not challenge the evidence of the Assessor as to the uses of the property. Their position was that the uses of the lands and improvements were compatible with the primary residential use. It was open to the Board on the evidence to find that the property constituted a permanent home or summer house with ancillary compatible improvements, to which the Respondents invited guests who paid for the privilege of sharing their home and gardens with them, in other words, what might be called a non-conforming bed and breakfast that came within Class 1. Indeed, such a finding was implicit in the Assessor's former classification. It was also open to the Board to find that some of the property is now being used as a tourist lodge that comes within the exclusion of "hotels and motels." It is precisely in such matters of characterization or application of definitions that the court should defer to the Assessment Appeal Board.

11 In Mah v. Assessor of Area 09 - Vancouver Assessment Appeal Board, August 9, 1995, that Board explained the meaning of the term "hotel" at pages 11 and 12: The term "hotel" is not defined in the Assessment Act, the Prescribed Classes of Property Regulation or the Interpretation Act. The Concise Oxford dictionary defines hotel as "a house for the accommodation of paying travellers." The Webster's New Collegiate Dictionary defined hotel as "an establishment that provides lodging and usually meals, entertainment, and various personal services for the public." In St. Helen's (Vancouver) Ltd. v. Assessor of Area 09 - Vancouver, March 23, 1984, the Board found that a "hotel is an improvement so used that overnight accommodation is offered to travellers." The following definition from the Hotel Guest Registration Act, R.S.B.C ch. 181, is also helpful: "hotel includes an inn or building in which private rooms are maintained for the accommodation of the public." Clearly the use of the land and improvements described in the Stated Case can come within that definition of a hotel. Equally, a guest house that welcomes travellers could come within the definition of a motel. When the St. Helen's case was stated for the opinion of the Supreme Court, Mr. Justice Taylor found that the Board had not erred in law in classifying a building as a hotel notwithstanding that it could also have been classified a rooming house or "multi-family residence" with a beer parlour separately classified and taxed. (St. Helen's Hotel (Vancouver) Ltd. v. Assessor of Area 9 - Vancouver, Case 189 (6 September 1984) (B.C.S.C.)). In that case, no fact was disclosed by the Stated Case that necessarily took that part of the property being used for long-term residents outside the definition of hotel in law. So here, no fact is disclosed by the Stated Case that necessarily takes the lodge rooms and cabins used to accommodate overnight travellers, outside the definition of hotel in law. Because the facts in the Stated Case can support the conclusion that the guest house is a hotel or motel, a portion of which is occupied by the owners and their family, the Board did not err in law in determining that a portion of the property did not come within Class 1. Consequently, I am of the view that the learned trial judge exceeded the jurisdiction of the Supreme Court on a Stated Case when she characterized the use of land and improvements as a "bed and breakfast" operation that did not constitute a hotel or motel. She could reach that result only if the Board's classification was patently unreasonable. Clearly that is not the case. The Respondents say that the Board erred when it failed to give reasons with regard to the propriety of the classification. The only complaint about the inadequacy of the reasons can be that the Board did not explain why it considered that the uses not disputed did not come within the terms of Class 1. The Board reviewed the evidence carefully and gave complete reasons with regard to the correct actual value of the land and improvements, the part of the appeal to the Board that did not give rise to a Stated Case. The Board's reasons, at page 8, indicate that it considered the Respondents' argument that "Class 1 included summer houses, or other buildings with compatible uses." The Board described the evidence that the Assessor had presented to it, and noted that "the Appellant did not dispute the facts with respect to the uses of the property adduced by the Respondent". The Board recognized its statutory obligation "to determine whether or not the land or improvements, or both, have been properly classified" at page 11. It accepted the facts alleged by the Assessor in the absence of any dispute by the Respondents, and concluded "The Board is satisfied that the property is being put to uses other than those prescribed under Class 1, and allows the Assessor's request for reclassification."

12 As the chambers judge noted in her reasons, the Board did not explain its reasoning with regard to the propriety of the Assessor's reclassification of the land and improvements. However, the Assessment Appeal Board is not required by statute or common law to deal explicitly in reasons with every piece of evidence and every argument put before it and either to accept it or reject it. Assessor of Area 14 - Surry/White Rock v. Simpsons-Sears Ltd. Case 136 B.C.C.A. (CA Vancouver Registry) January 22, Thus, the failure of the Assessment Appeal Board to state why it agreed with the Assessor's classification is not an error of law that permits the Supreme Court to interpret the regulation and determine whether or not lands and improvements come within a particular class. The fourth ground of appeal raises the issue of whether there was some evidence before the Board to support its allocation of actual value between Class 1 and Class 6. Part of the Assessor's duty under section 10 of the Regulation is to apply his judgment to arrive at the share of actual value to be attributed to each class. The weight and sufficiency of the evidence are matters of fact for the Board, especially when there is a range of options or approaches open to the Board. The Board in this case had before it the evidence of the Assessor and Exhibit 7, all of which provided some evidence to support the allocation of value determined by the Board. I would allow the appeal and answer Question #1 in the negative. LEGG, J.A.: I agree. CUMMING, J.A.: I agree. LEGG, J.A.: The appeal is allowed and Question #1 is answered in the negative. Leave to appeal was granted on condition that the Assessor would not seek costs so the order of the Court is that the appeal is allowed without costs to any party.