RONALD GENE BUDDENHAGEN and CHRISTINE MARGARE BUDDENHAGEN CRANBROOK ASSESSMENT AREA. Supreme Court of British Columbia (No.

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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 105 Buddenhagen v. Cranbrook Assessment Quick Link to Stated Case #105 (BCCA) Before: MR. JUSTICE V.L. DRYER D. Niedermayer for the Appellants T.J. Melnick for the Respondent RONALD GENE BUDDENHAGEN and CHRISTINE MARGARE BUDDENHAGEN v. CRANBROOK ASSESSMENT AREA Supreme Court of British Columbia (No. SC69/75) Cranbrook, November 4, 1975 Writ of Certiorari to Board acting on reassessment under section 9 (2) of Assessment Act which was nullity The Assessment Commissioner had pursuant to section 9 (2) of the Assessment Equalization Act ordered a complete reassessment of land in the Cranbrook district. The section allows the Commissioner to order a complete reassessment of "land and improvements". The taxpayer appealed to the Assessment Appeal Board questioning the assessment which was then confirmed. The taxpayer sought a Writ of Certiorari. HELD: Since the reassessment order was for land only and not land and improvements, it was not a "complete" reassessment and therefore such reassessment was a nullity and when the Assessment Appeal Board relied on such reassessment, it had made an error on the face of the record. Its order on the assessment of the land in question was therefore quashed and a Writ of Certiorari ordered to issue. Reasons for Judgment December 17, 1975 This is an application for a Writ of Certiorari brought by the applicants, Ronald Gene Buddenhagen and Christine Margare Buddenhagen, against the assessor for the Cranbrook Assessment District. Counsel for the respondent takes the preliminary objection that certiorari does not lie here because, he says, the Assessment Equalization Act, R.S.B.C., 1960, c. 18, in sections 43 to 52 and particularly in sections 50 and 51, provides a full and complete appeal and the time thereby limited for appeal, twenty-one days, has expired. He relies here on E. E. Pringle and the Department of Manpower and Immigration v. Hugh Hypolite Fraser, (1972) S.C.R. 821; British Columbia Securities Commission and Attorney-General of British Columbia v. Robertson, (1974, 2 W.W.R. 165 and The Queen v. Sheward, (1880), 4 Q.B.D. 179.

2 The sections mentioned do not provide a "full appeal" and the Assessment Equalization Act does not contain words ousting the jurisdiction of this Court in certiorari in any way similar to those considered in the Pringle v. Fraser and British Columbia Securities Commission v. Robertson cases. In The Queen v. Sheward the applicants had, before applying for certiorari, taken other steps inconsistent with the questioning of the decision they wished brought up and quashed on certiorari. There are no similar facts here. The time limited for certiorari under our rules had not expired in the case at bar when these proceedings were started. The preliminary objection is overruled. I now turn to the main motion. The picture here is confused by the fact that the Assessment Commissioner wrote a number of letters (perhaps amounting to orders) to the assessor for the Cranbrook Assessment District, and presumably to some if not all other assessors, in one of which, namely that of June 20th, 1973, is found the words: "Accordingly you are hereby ordered under Section 9 (2) of the Act to reassess for entry into the 1974 Assessment Roll, all land and improvements except those included within the provisions of Section 37-A." The substance of these words is set out in the Board's order. Section 37 -A (1) reads as follows: "Notwithstanding the provisions of Section 37 the assessed value of land or improvements shall not be increased in any year by more than 10% of the assessed value of land or improvements in the preceding year unless the increase is attributable to a change in the physical characteristics of the land or the improvements or to new construction or development thereto, thereon, or therein or results from a reassessment ordered by the Commissioner under sub-section 2 of Section 9." The italics are, of course, mine. The finding of the Assessment Appeal Board contains the following statement: "Mr. Jacob, the respondent, in reply to the statements made by the appellant informed the Board that on November 14, 1973 an order by the Assessment Commissioner was issued and addressed to Mc. R. D. Whyte, Provincial Assessor, Cranbrook District, which reads as follows: 'Under Section 9 (2) of the Assessment Equalization Act, you are hereby ordered to re-assess land in the Cranbrook District within School District No. 2 for entry into the 1974 Assessment Roll. This order is conditional on compliance with Section 37 (2) of the Act and with the objectives determined for School District No.2 (Cranbrook)'." On December 18th, 1973 the Assessment Commissioner sent a further notice to all assessors which impliedly at least suggests that the directive of June 20th, 1973 was still in effect. This notice is not referred to in the Board's order but it was referred to at the hearing without objection and, in any event, the conclusion I have reached makes reference to it not material, though of course it might be if a different view were taken. The appellant contends that the Assessment Appeal Board did not consider the conflict between the order of November 14th and the other orders. That may be so but I cannot be sure that it is so. The finding of the Board is not well drawn in this respect, but I do not think I can on that basis alone order the issue of the writ. The applicant further contends that what was issued by the Assistant Commissioner on November 14th, 1973, does not constitute an order under section 9 (2) of the Assessment Equalization Act since it relates only to land and he contends an order under section 9 (2) must direct "a complete re-assessment of the land and improvements in his jurisdiction or portion of

3 same". Counsel for the respondent says that the words "portion of same" modify "land and improvements" and counsel for the applicant says they must modify "jurisdiction". I think, because of the most immediate logical antecedent rule and the presence of the word "complete", I must agree with counsel for the applicant here and hold that the November 14th, 1973 directive was not an order which complied with the requirements of section 9 (2). There is a further matter to consider. Counsel for the applicant contends that the Board disposed improperly of the applicant's contention that his property was assessed at too high a value in relation to the assessment of similar property in the area. It is asserted by the applicant and not disputed that only one item of evidence showing the assessment of other land in the area was offered, and it was assessed at $ per acre while the subject property was assessed at $ per acre. From the finding of the Board it would appear that the only other evidence on this question was the opinion of the assessor that "the assessment is fair and equitable". In the contest before the Board, the issue was whether the assessor's opinion was right or wrong. The assessor's opinion that his decision was right is hardly evidence that can be used on that issue. There was, therefore, only one item of evidence before the Board on the issue presented to it under section 46 and that was the item relating to the piece of property presented by the applicant Buddenhagen. The language of the award suggests that the Board considered that particular piece of property to be similar property although it does not specifically say so. The Board disposes of this issue in the following words: "The actual value, other than one comparison not being contested, the Board finds no evidence was presented to justify altering the present assessment." It is difficult to be sure what the Board was saying here. I have come to the conclusion that a comma must be placed after "comparison" and if so it seems to me that the Board has compared the actual value of the subject property with the assessed value under review whereas section 46 (1) paragraph (a) indicates that what is to be compared is the assessed value of the subject property and the assessed value of similar properties in the area. The Board could have decided not to alter the assessment even if that of similar property was not in line but at least it should first consider the matter and it does not appear to me that it has done so. It failed to deal with the question remitted to it pursuant to section 46 of the Act and decided a question which was not remitted to it. I therefore conclude that the Board did not consider the matters that it ought to have considered and, in treating the order of November 14th, 1973 as an order made under section 9 (2), made an error of law which appears on the face of the record, and the finding of the Assessment Appeal Board must be quashed. See Anisminic v. Foreign Compensation Commission, [1969] 2 A. C. 147 at 171 quoted by Branca, J. A., in Corporation of City of North Vancouver and Jellis v. Philps et al [1973] 3 W.W.R. 262 at 273. SC 105cont Buddenhagen v. Cranbrook Assessment RONALD GENE BUDDENHAGEN and CHRISTINE MARGARE BUDDENHAGEN v. CRANBROOK ASSESSMENT AREA

4 British Columbia Court of Appeal Before: CHIEF JUSTICE J.L. FARRIS, MR. JUSTICE A.E. BRANCA, and MR. JUSTICE P.D. SEATON R.B. Hutchison for the appellant assessor D.P. Niedermayer the respondents Commissioner - Jurisdiction - Reassessment Orders - AEA.9 - Appeals - Procedure - Stated Cases - Validity Reasons for Judgment of Mr. Justice Seaton June 2, 1977 Per Curiam The appeal is from the order of Dryer, J. Quashing an order of the Assessment Appeal Board respecting the assessment of the respondents' land for the year We are concerned with the legislation that was in force in Section 37A (1) of the Assessment Equalization Act, R.S.B.C. 1960, Chap. 18, as amended, provided that assessed values could not be increased more than 10 per cent except under certain circumstances. One of those circumstances, the one that concerns us, is where the increase results from a reassessment ordered by the Commissioner under ss.(2) of s.9. In the order under appeal the learned Chambers Judge concluded that the order by the Commissioner was not an order under s. 9 (2). I set out the two provisions as they read at the time with which we are concerned: 37A. (1) Notwithstanding the provisions of section 37, the assessed value of land or improvements used for residential purposes or classified as farm land shall not be increased in any year by more than ten per centum of the assessed value of the land or improvements used for residential purposes or classified as farm land in the preceding year unless the increase is attributable to a change in the physical characteristics of the land or the improvements, or to new construction or development thereto, thereon, or therein, or results from a reassessment ordered by the Commissioner under subsection (2) of section 9. (Italics added) 9. (2) The Commissioner may at any time order the Assessor of a municipal corporation or rural area to carry out a complete reassessment of the land and improvements in his jurisdiction or portion of same, and if the reassessment by the Assessor is not satisfactory in the opinion of the Commissioner, the Commissioner may conduct a complete assessment of land and improvements in such municipal corporation or rural area or portion of same as he considers necessary for the purpose of securing general uniformity in assessments for real property taxation under the Public Schools Act. The order of the Assessment Commissioner read as follows: Under Section 9 (2) of the Assessment Equalization Act, you are hereby ordered to reassess land in the Cranbrook District within School District No. 2 for entry into the 1974 Assessment Roll. This order is conditional on compliance with Section 37 (2) of the Act and with the objectives determined for School District No. 2 (Cranbrook).

5 Dryer, J. was of the view that a reassessment of land only as directed by the Commissioner was not "a complete reassessment of the land and improvements in his jurisdiction or portion of same". I agree. It is argued that this is enabling legislation and that the Commissioner can exercise part or parts of the power that he is given. In my view that argument and all of the other arguments fail because of the very clear word "complete". The Commissioner's authority is to order a complete reassessment. The section does provide that he can limit the reassessment to a portion of the jurisdiction of the assessor but the provision later in the section demonstrates that portion refers to a portion of the area, not the assessment. We have been told about the desirability of a reassessment of the land only, but those submissions ought to have been made to the Legislature. In my view, the words "complete reassessment of the lands and improvements" excluded anything less than a complete reassessment, and a reassessment of land only would have to be characterized as an incomplete reassessment of the land and improvements. I agree with the primary ground upon which the order under review was granted and need not consider the alternative grounds. I would dismiss the appeal.