CANADIAN PACIFIC RAILWAY COMPANY ASSESSOR OF AREA 09 - VANCOUVER. SUPREME COURT OF BRITISH COLUMBIA (L050432) 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 Property Assessment Appeal Board Decisions SC 513 CPR v AA09 Link to Property Assessment Appeal Board Decision CANADIAN PACIFIC RAILWAY COMPANY v. ASSESSOR OF AREA 09 - VANCOUVER SUPREME COURT OF BRITISH COLUMBIA (L050432) Vancouver Registry Before the HONOURABLE MADAM JUSTICE BRUCE Date and Place of Hearing: November 20, 2007, Vancouver, BC B.J. Wallace, Q.C. and K.C. Bourchier for the Appellant G. McDannold for the Respondent Land Title Office Records Lack of Jurisdiction by Board The properties are part of the "Kits Wye Lands" located near False Creek in Vancouver BC and were originally part of the Kitsilano Indian Band Reserve. They were acquired by the Appellant for purposes associated with the operation of the railway in 1886 and In a judgment dated June 15, 2000 Madam Justice Saunders found that the Appellant had a defeasible interest in the properties which expired by operation of law when the properties were no longer used for railway operations. Further, Madam Justice Saunders held that effective as of June 15, 2000, the properties reverted to the federal government to be held for the benefit of the band ultimately determined to have rights in respect of the properties. The Land Title Office records as of November 30, 2000 through November 30, 2002 showed CPR as the owner of the subject properties. The Appellant claimed the 2001, 2002 and 2003 assessment rolls were inaccurate because the rolls showed the Appellant as the owner of the properties when they were actually owned by the federal government. Since June 2000 the properties have been entirely vacant. There have been no railway operations on the properties since this date and consequently the properties were assessed as bare land. When the Assessor assessed the properties in the Appellant's name for the 2001 to 2003 taxation years, he was aware of Madam Justice Saunders' judgment and the order vesting title of the properties in the federal government. The Property Assessment Appeal Board ("the Board") dismissed the Appellant's appeal based upon a lack of jurisdiction to change the assessment rolls for the years 2001 to 2003 to reflect an owner of the properties other than the Appellant. The Board concluded the Assessment Act required the Assessor to determine ownership in accordance with the Land Title Office records as they existed at November 30th prior to each taxation year. Further, the Board concluded that neither it, nor the Assessor, had jurisdiction to specify a different owner notwithstanding the Courts of the Province had conclusively determined that the Land Title Office records were inaccurate at the time and that the federal government was the owner in fee simple of the properties. HELD: Appeal Allowed. This Court found the Board erred in law when it concluded that it lacked jurisdiction to amend the assessment rolls for the 2001 to 2003 years to remove the Appellant's name as the owner of the properties. The Board was bound by the order vesting title of the properties in the federal government at page 1

2 the time of its pronouncement and the definition of owner contained in the Act must be read subject to the terms of that Order. This Court ordered the Board to carry out the mandate found in section 65(10) of the Act and directed the Assessor to make the amendments to the assessment rolls necessary to give effect to this decision. Reasons for Judgment December 6, 2007 INTRODUCTION [1] This is a Stated Case filed by the Property Assessment Appeal Board ("Appeal Board") pursuant to s. 65 of the Assessment Act, R.S.B.C. 1996, c. 20 as a result of a request filed by the Appellant on February 1, The Stated Case for the opinion of the Court on a question of law is as follows: Did the Board misapply or misinterpret section 57 of the Assessment Act in determining that because the Assessor did not err in relying on the Land Title Office records in assessing the Appellant as owner of Lot J and [certain portions of] Block I, that the Assessment Roll was accurate, even though at the time the assessment was made the Appellant was not the owner of Lot J and Block I and the Courts had so found? [2] There is no dispute that this is a question of law properly subject to a Stated Case under s. 65 of the Assessment Act. There is also no dispute that the standard of review is correctness. SUMMARY OF THE FACTS [3] The evidence before the Appeal Board was in the form of an agreed statement of facts. Essentially, the Appellant claimed that the assessment rolls for the years 2001, 2002, and 2003 were inaccurate because the rolls, which establish the basis for property taxes levied by the City of Vancouver, showed the Appellant to be the owner of Lot J and a certain portion of Block I (the "properties"), when in reality these properties were owned by the federal government. [4] Pursuant to s. 3(4) of the Assessment Act, the Assessor determined that the Appellant was the owner of the properties for the 2001, 2002, and 2003 taxation years because the Land Title Office records indicated the Appellant was the registered owner in fee simple of the properties. As a consequence of this assessment, the Appellant paid the taxes levied by the City of Vancouver against the properties for the years 2001, 2002, and 2003 in the amount of $325, [5] The properties are part of the "Kits Wye Lands" located near False Creek in Vancouver, BC and were acquired by the Appellant for purposes associated with the operation of the railway in 1886 and These properties were originally part of the Kitsilano Indian Reserve. [6] In 1989, the federal government commenced an action in Supreme Court alleging that it was the lawful owner of the Kits Wye Lands, including the properties claimed by the Appellant. Three aboriginal bands also claimed ownership of the Kits Wye lands and filed separate lawsuits. These ownership claims were heard together in this court before Madam Justice Saunders, who gave judgment on June 15, 2000 (Squamish Indian Band v. Canadian Pacific Ltd., 2000 BCSC 933, affd 2002 BCCA 478). [7] By this judgment the Appellant was found to have a defeasible interest in the properties which expired by operation of law when the properties were no longer used for railway train operations. Further, Madam Justice Saunders held that effective June 15, 2000, the properties reverted to the federal government to be held for the benefit of the aboriginal band ultimately determined to have rights in respect of the properties. [8] The orders entered as a result of Madam Justice Saunders' judgment provided that the Appellant had ceased to use the properties effective June 15, 2000; that the Appellant had no right, title, or interest in the properties; and that the properties were "hereby vested in Her Majesty and Queen in Right of page 2

3 Canada" and revived as reserve lands to be used for the benefit of the aboriginal band found entitled to the use and enjoyment of the properties. [9] The Appellant appealed Madam Justice Saunders' judgment and the appeal was dismissed by the Court of Appeal on August 27, 2002 (Squamish Indian Band v. Canadian Pacific Ltd., 2002 BCCA 478). A supplementary judgment addressing costs and the form of the order was issued by the Court of Appeal on May 13, 2003 (Squamish Indian Band v. Canadian Pacific Ltd., 2003 BCCA 283), with the final order entered on July 15, The Appellant filed a notice of appeal to the Supreme Court of Canada, but submitted a notice of discontinuance in respect of this action on July 25, [10] Since June 2000 the properties have been entirely vacant. There has been no railway operation on the properties since this date and the properties were assessed as bare land. When the Assessor included the Appellant's name in the assessment rolls for the taxation years 2001, 2002, and 2003, he was aware of Madam Justice Saunders' judgment and the order vesting title of the properties in the federal government. [11] On December 19, 2003, the federal government's transfer documentation with respect to the properties was accepted for registration by the Land Title Office. A copy of the reasons for judgment of the Court of Appeal dated August 27, 2002 was attached to the Form 17. On February 6, 2004, the Land Title Office records reflected the federal government as the registered owner in fee simple of the properties. [12] When the Assessor prepared the assessment rolls for the taxation year 2004, the owner of the properties was determined to be the federal government and the Appellant was not assessed any taxes in respect of the properties for that year. [13] The Appellant disputed the assessment rolls for each of the taxation years 2001, 2002, and 2003 and paid the tax assessed by the City of Vancouver under protest on the ground that the wrong person was named in the assessment rolls as the owner of the properties. In each year, the assessment rolls were confirmed as accurate by a review panel pursuant to its authority under s. 38 of the Assessment Act. In each year, the Appellant appealed the review panel's decision to an Appeal Board under s. 50 of the Assessment Act and the three appeals were heard together and a decision rendered on January 13, [14] The January 13, 2005 decision of the Appeal Board is the subject of this Stated Case. The Appeal Board dismissed the Appellant's appeal based upon a lack of jurisdiction to change the assessment rolls for the years 2001, 2002, and 2003 to reflect an owner of the properties other than the Appellant. The Appeal Board concluded that the Assessment Act required the Assessor to determine ownership in accordance with the Land Title Office records as they existed at the time of the assessment each taxation year. Further, the Appeal Board concluded that neither it, nor the Assessor, had jurisdiction to specify a different owner notwithstanding the Courts of the Province had conclusively determined that the Land Title Office records were inaccurate at the time and that the federal government was the owner in fee simple of the properties. [15] The Appeal Board's conclusions are reflected in the following passages from their decision: [35]... The Court has determined that the owner in fee simple of the lands at the relevant time was Canada. This determination is binding in a universal sense and a complete awarding of rights associated with ownership of the Lands. The Board, as indicated above, has only limited authority, as distinct from a Court of inherent jurisdiction. In their grammatical and ordinary sense, the definitions of the Act identify, for the purposes of the Act, CPR as an owner. Therefore, there is no error as required by section 32(1)(a) or (b) of the Act. [37] Section 3(4) of the Act requires that the Assessor "must use" the records of the land titles office as of November 30 of the year in which the assessment roll is completed. page 3

4 [39] I find the Assessor made no error in setting the roll, and there was no error made in accordance with section 32(1) of the Act. The Assessor had no authority to name someone other than the owner specified in the land titles office as the owner of the Lands, and did correctly name CPR as the owner for taxation purposes at the relevant time. [16] Specifically addressing its authority under s. 57 of the Assessment Act, the Appeal Board concluded: [41] I find there is no inaccuracy with respect to the property's assessment. There is indeed an inaccuracy in the land titles office for the years in question because the records show CPR as owner; and the Court has indicated that not to be the case. However an inaccuracy in the land titles office or an inaccuracy in the public perception of ownership is not the same as an inaccuracy in the property's assessment. The Board has statutory powers only, and those powers are specified by the language of the operative legislation. The assessment was made in accordance with the language of the Act, and is accurate in accordance with the requirements of the Act. For the purposes of assessment, CPR was the owner, and the registered owner of the Lands in question. [46] The roll is accurate and in accordance with the legislation. The question for the Board is not whether or not CPR was actually the owner of the Lands at the time they were registered as such. The question is whether the roll is accurate. The rules for completing the roll are set out in the applicable legislation. The legislation governs both the completion of the roll and the jurisdiction of the Board. The legislation was complied with and does not provide jurisdiction for the Board to effect a remedy. [47] The Board does not have jurisdiction to address an inequity resulting from a determination of ownership of the Lands different from that properly shown on the roll. RELEVANT LEGISLATIVE PROVISIONS [17] The Assessment Act constitutes a comprehensive statutory scheme for the annual assessment of the market value of real property and associated improvements that are situated within the province. This mandate is confirmed by s. 9 of the Assessment Authority Act, R.S.B.C. 1996, c. 21, which provides that the purpose of the BC Assessment Authority is "to establish and maintain assessments that are uniform in the whole of British Columbia in accordance with the Assessment Act". [18] Pursuant to the provisions of the Assessment Act, before December 31st each year the Assessor must complete a new assessment roll containing a list of each property liable to assessment, establish a value for those properties, and send a notice of assessment to the owner of the property. Because the assessment roll forms the basis for municipal taxation of the property, the Assessor is also responsible for determining ownership of properties contained in the assessment rolls. [19] Ownership of property subject to assessment is governed by the definition section and by s. 3(4) of the Assessment Act. The latter provision says that when completing an assessment roll, the Assessor "must use the information contained in the records of the land title office as those records stood on November 30 of the year in which the assessment roll is completed." [20] Section 1 of the Assessment Act defines "owner" in respect of real property as the "registered owner of an estate in fee simple." "Registered owner" or "registered owner in fee simple" is defined as "a person registered in the books of the land title office as entitled to an estate in fee simple in real property". [21] The assessment roll for any particular year may be challenged by filing a complaint with a review board established under s. 31 of the Assessment Act. The grounds available to a complainant are described in s. 32(1) of the Act as follows: (a) there is an error or omission respecting the name of a person in the assessment roll; page 4

5 (b) there is an error or omission respecting land or improvements, or both land and improvements, in the assessment roll; (c) land or improvements, or both land and improvements, are not assessed at actual value; (d) land or improvements, or both land and improvements, have been improperly classified; and (e) an exemption has been improperly allowed or disallowed. [22] The authority of the review board is defined by ss. 38 to 42 of the Assessment Act. The scope of the review board's jurisdiction is described in s. 38(1) of the Act: A review panel may review and consider the assessment roll and the individual entries in it to ensure accuracy and that assessments are at actual value applied in a consistent manner in the municipality or rural area. [23] Section 43 of the Assessment Act establishes the Appeal Board which has jurisdiction to hear appeals from review board decisions (s. 43(2)). An appeal lies to the Appeal Board where a person is dissatisfied with a decision of a review panel (Part 6, s. 50(1)). The appeal must be based upon one or more grounds referred to in s. 32(1). The powers and duties of the Appeal Board are described in s. 57 of the Act as follows: 57(1) In an appeal under this Part, the board (a) may reopen the whole question of the property's assessment to ensure accuracy and that assessments are at actual value applied in a consistent manner in the municipality or rural area, and (b) when considering whether land or improvements are assessed at actual value, must consider the total assessed value of the land and improvements together. [24] Lastly, ss. 64 and 65 of the Assessment Act govern Appeal Board references to this court on a question of law. This application is brought under s. 65 of the Assessment Act: 65(1) Subject to subsection (2), a person affected by a decision of the board on appeal... 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. 65(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... THE PARTIES' POSITIONS [25] The Appellant argues that the Appeal Board committed two errors of law in its decision. First, the Appeal Board erred in concluding that the Assessor was bound to determine ownership of the properties based upon the records of the Land Title Office. Second, assuming the Assessor was bound to determine ownership solely based upon the Land Title Office records, the Appeal Board erred in concluding that it had no jurisdiction to correct the assessment roll based upon the apparent inaccuracy of these records pursuant to s. 57 of the Assessment Act. [26] In regard to the first error, the Appellant argues s. 3(4) of the Assessment Act does not require the Assessor to determine ownership of assessed lands and improvements by reference to the person or persons named in the Land Title Office records if there is conclusive evidence that the records are in error. To conclude otherwise leads to absurd consequences as in this case where a person was assessed taxes in respect of properties it neither owned nor occupied. See Whistler Village Land Co. v. British Columbia (Assessor Area North Shore Squamish Valley) (1981), 121 D.L.R. (3d) 284 (B.C.S.C.). page 5

6 [27] The Appellant maintains that a procedural rule such as that contained in s. 3(4) of the Assessment Act cannot override a substantive obligation to ensure the assessment roll is accurate. [28] Addressing the second error, the Appellant argues that even if the Assessor was bound by the records of the Land Title Office, the Appeal Board is not subject to the same limitation and has an overriding authority to ensure the accuracy of the assessment roll. The Appellant maintains the Appeal Board is an inquisitorial body that decides appeals based upon its own findings of fact as a trial de novo. The Appeal Board may go behind the decision of the Assessor and "reopen the entire case" so as to ensure the accuracy of the assessment roll. Section 57 of the Assessment Act grants the Appeal Board broad powers of review; it is not limited by the jurisdiction of the Assessor. The question was not whether the Assessor did his job correctly, but whether the assessment roll was accurate: see British Columbia (Assessment Commissioner) v. Western Forest Industries Ltd. (1980), 25 B.C.L.R. 189 (C.A.); Annacis Auto Terminals (1997) Ltd. v. British Columbia (Assessor Area No Richmond/Delta), 2001 BCSC 1618, rev'd 2003 BCCA 315, leave to appeal to SCC refused, April 22, 2004; and Fletcher Challenge Canada v. British Columbia (Assessor Area No. 4 - Nanaimo/Cowichan), Property Assessment Appeal Board decision, March 29, 2000 at para 6. [29] The Appellant asks the court to answer the Stated Case in its favour and order that the assessment rolls for 2001, 2002 and 2003 be amended to reflect the true ownership of the properties: see Cressey Development Corp. v. North Vancouver (District), [1994] B.C.J. No. 215 (S.C.) (QL) and Southam Inc. v. British Columbia (Assessor Area No Surrey/White Rock), 2003 BCSC 676 at paras 54-56, appeal dismissed, 2004 BCCA 245, leave to appeal to SCC refused, November 18, [30] The Respondent argues the court does not have jurisdiction to go beyond the precise question asked on the Stated Case. The first issue raised by the Appellant is expressly excluded from the Stated Case. Accordingly, the Respondent argues the court is not entitled to consider whether the Assessor was bound to determine ownership in accordance with the records of the Land Title Office: see Trustee Board of the New Vista Society v. British Columbia (Assessor of Area No. 10 Burnaby/New Westminster) (May 1, 1992), Victoria CA V01325 (B.C.C.A.). [31] The Respondent argues the Appeal Board committed no error of law in its decision to deny the Appellant's appeal and to confirm the Assessor's decision as to the accuracy of the assessment roll. The Respondent maintains that the Appellant's submission goes beyond the limited jurisdiction accorded to the Appeal Board as a statutory tribunal and seeks to invest in the Appeal Board inherent jurisdiction. See British Columbia Assessment Authority v. Rayonier Canada (B.C.) (1977), 75 D.L.R. (3d) 309 (B.C.S.C.); Kranz v. British Columbia (Assessor of Area No. 10 Burnaby/New Westminster) (1994), 94 B.C.L.R. (2d) 277 (S.C.); and Sara Blake, Administrative Law in Canada, 3rd ed. (Markham: Butterworths, 2001) at 109. [32] The Respondent argues the issue is whether the Appeal Board erred in law by concluding that the Appellant was not the owner of the properties as defined by the Assessment Act, and not whether the roll was accurate. The powers of the Appeal Board under s. 57 are circumscribed by the limitations placed upon the grounds for appeal in s. 32 of the Assessment Act. Because the only ground of appeal was that the wrong person was named in the assessment roll as the owner of the property, this defines the parameters of the Appeal Board's jurisdiction. [33] The Appeal Board, argues the Respondent, correctly determined that pursuant to the provisions of the Act the Appellant was the owner of the properties at the relevant time. Neither an error in the Land Title Office records nor a decision of this Court can oust the statutory mandate placed on the Assessor to use these records exclusively in determining ownership. Further, neither the Assessor nor the Appeal Board has jurisdiction to stray from this statutory mandate: see s. 9 and s. 3(4) of the Assessment Act; s. 29 of the Interpretation Act, R.S.B.C. 1996, c In particular, the Respondent notes that the predecessor to s. 3(4) accorded the Assessor more latitude in determining ownership by the words, "have reference to" the records of the Land Title Office in its preamble: see s. 2(3) of the Assessment Act, R.S.B.C. 1979, c. 21. page 6

7 [34] Because of the amendments to s. 3(4) of the Assessment Act, the Respondent argues Whistler Village is not helpful to the Appellant. Further, the Respondent argues Annacis is distinguishable on its facts and, in any event, does not support the Appellant's argument. The Court of Appeal rejected the broad interpretation of s. 57 contained in the lower court decision. The Respondent also argues that Fletcher Challenge does not support the Appellant's position because the court rejected the Assessor's argument in that case that the Board had an overriding obligation and duty to ensure the roll is accurate in every respect. Finally, the Respondent maintains Cressey is only applicable to judicial review applications and does not apply to Stated Cases under the Assessment Act. ANALYSIS [35] The Appeal Board purported to approach this question of statutory interpretation by applying the test described in Elmer Driedger, The Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983) at 87, which was approved of by the Supreme Court of Canada in Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42. [36] Driedger's formulation of the proper approach to statutory interpretation is a principled one, where "the words of the statute are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, and the intention of Parliament." I find no error in the Appeal Board's adoption of this approach. The question is whether the Appeal Board erred in law in the application of this approach to this particular case when it narrowly interpreted its jurisdiction so as to exclude an authority to go behind the records of the Land Title Office when reviewing the question of ownership as it relates to the accuracy of the assessment roll. [37] The parties disagree about the scope of the issue before the Appeal Board. The Respondent argues the sole issue was whether there was an error in the name of the person assessed. The Appellant argues the question before the Appeal Board was whether the assessment roll was accurate given there was conclusive evidence that CPR was not the owner of the properties for the taxation years 2001, 2002, and [38] I find the argument raised by the Respondent is merely semantics. The Appeal Board characterized the issue as whether it had jurisdiction to change the assessment roll to reflect an owner different from the Appellant for the taxation years 2001, 2002, and This statement of the issue implicitly recognizes that the appeal engaged the Appeal Board's jurisdiction to review the accuracy of the assessment roll. Moreover, the Appeal Board expressly addressed the matter in issue as one concerning the accuracy of the roll (at p. 41). In this case the potential error related to the owner named in the roll in respect of the properties forming the subject of the appeal. While the Appeal Board accepted as a fact that the Appellant was not the owner of the properties at the relevant time, it concluded that it had no jurisdiction to correct the assessment rolls and redress the obvious inequity of taxing the Appellant in these circumstances. It is this conclusion that forms the subject of the Stated Case before the court. [39] The Appeal Board found that it was bound by the mandate of the Assessor under s. 3(4) of the Assessment Act to rely upon the Land Title Office records to determine ownership for each taxation year. The limited definitions of "owner" and "registered owner" served to confirm the Appeal Board's conclusion that only the registered owner according to the Land Title Office records could be used in the assessment rolls. Lastly, having no authority but that which was expressly conferred by the empowering legislation, the Appeal Board concluded it lacked the jurisdiction to make the appropriate changes to the assessment rolls. Or, as alternatively expressed by the Appeal Board, the Assessor had committed no error under the Assessment Act that created an inaccuracy in the assessment rolls. [40] Neither party takes issue with the general proposition that a statutory tribunal has only those powers and authority conferred upon it by statute. This proposition is confirmed in Kranz at para 7. The question posed in this Stated Case requires the court to determine the scope of the powers conferred upon the Appeal Board by s. 57 of the Assessment Act, read in context and in their grammatical and ordinary sense, harmoniously with the scheme of the statute and the intention of the Legislature. page 7

8 [41] Section 57 of the Assessment Act and its predecessors have been interpreted by two judgments relied upon by the Appellant. In the 1980 case of Western Forest, the Court of Appeal addressed the jurisdiction of the Appeal Board to increase the assessed value of property when no appeal had been filed by the Assessor. The issue on appeal from the Stated Case is described by Taggart J.A. at para 5:...whether, in the absence of an appeal to it by the assessor, the board, having found the actual value of the buildings and machinery to be greater than the value found by the assessor, can increase the assessed value of the buildings and machinery to a value calculated by using the actual value found by it to be correct. [42] The internal review process described in the Assessment Act in force in 1979 is essentially the same as in the current legislation. The Assessor's determinations could be questioned before a "Court of Revision" and a further appeal lay to an Appeal Board. Sections 69 and 71 governed the jurisdiction of the Appeal Board to hear and determine appeals: 69(1) In an appeal under this Act the board has and may exercise with reference to the subject matter of the appeal, all the powers of the Court of Revision, and without limiting the generality of the foregoing, the board may determine (a) whether or not the value at which land or improvements or both, have been valued too high or too low an amount On an appeal, on any ground, from the decision of the Court of Revision in respect of the assessment of property, the board may reopen the whole question of the assessment on that property, so that omissions from, or errors in, the assessment roll may be corrected, and an accurate entry of assessment for that property and the person to whom it is assessed may be placed on the assessment roll by the board. [43] At paras 46, 56, 60-62, the majority in Western Forest concluded that the trial judge had defined the Appeal Board's jurisdiction too restrictively: These provisions of the Act, on first reading, seem to say that the board is empowered to correct errors and omissions so that the assessment roll is correct and accurate. It would be difficult to conceive of language better suited than that found in ss. 69 and 71 to accomplish that purpose....we are obliged to consider the matter and I conclude that s. 71 is broader than a mere slip rule.... The board is permitted by s. 71 to reopen "the whole question of the assessment on that property". What could be broader than that? I concede that the use of the words "omissions and errors" leads one to assume that the section is narrow. But in this Act the words are given a meaning somewhat broader than they are often given.... The respondents argue that if the legislature had wished to permit the board to deal with appeals this way, it would have said so clearly. They did not suggest any words clearer to me than those found in ss. 69 and 71. I think the board has been given the broad powers claimed for it by the appellants. [44] In Annacis, Mr. Justice Smith specifically addressed the scope of the Appeal Board's jurisdiction under the current legislation. The issue in that case was whether the Appeal Board had jurisdiction to add to the assessment roll a taxable occupier of land that was previously recorded as exempt from taxation as Crown lands, and to make the occupier liable for the property tax. The Appeal Board concluded it had jurisdiction to correct the assessment roll and on a Stated Case to the Supreme Court, the Appellant maintained s. 57 of the Assessment Act did not confer the power to "order the assessment of a person whose omission from the roll was not in issue before the review panel", and that the jurisdiction conferred is only in respect of the valuation of property. page 8

9 [45] Smith J. dismissed the Appellant's argument and came to the following conclusions about the scope of s. 57 at paras The provisions of s. 60, which were part of our law for a great many years before the 1998 amendments, were given a broad interpretation by the Courts. For example... Western Forest Industries Ltd et al... That case and several similar cases were generally understood to stand for the proposition that the Board had a broad inquisitorial jurisdiction conferred for the purpose of arriving at accurate assessment roll. On a consideration of the whole of the Act in light of the repealed provisions for which Parts 4, 5, and 6 were substituted, I am satisfied that the legislature did not intend to narrow the jurisdiction of the Board... Annacis' argument ignores the words "to ensure accuracy and" in s-s. 57(1). Meaning must be given to those words. Subsection 57(1) contemplates three objectives: "accuracy", that "assessments are at actual value", and that assessments at actual value are "applied in a consistent manner." I think that, in choosing the word "accuracy", the legislature intended simply to state more generally and in less detail what was provided for in s. 60, that is, the correction of errors and omissions in the assessment roll and the accurate entry of the assessment and of the person to whom the property was assessed.... I find support for that construction in the fact that the legislature did not repeal the phrase "may reopen the whole question of the property's assessment"... [46] Smith J. also reviewed the authority granted to the Appeal Board under ss. 50 to 58 of the Assessment Act and concluded at para 56 that the legislature did not intend to restrict the appeal jurisdiction to errors and omissions allegedly made by the review panel: The word "dissatisfied" connotes discontent or displeasure and, had the legislature intended that the grounds of appeal should be confined to reviewable errors, it would have chosen language more apt for that purpose... [47] Lastly, Smith J. held at para 58 that the proceedings before the Appeal Board were not adversarial but inquisitorial in nature for the following reasons: That conclusion is supported by the broad power given to the Board by s-s. 57(1) to "reopen the whole question of the property's assessment to ensure accuracy and that assessments are at actual value...", by the provisions of s. 52 that permit the Board to direct any person who may be affected to be added as a party and to permit persons to take part as intervenors, by the provisions in s-s. 54(4) that the Board may proceed with a hearing even though a party does not attend or make submissions, and by a consideration of the legislative scheme as a whole which, as I have already observed, is designed to ultimately produce an accurate and final assessment roll. [48] Although a majority of the Court of Appeal overturned Smith J.'s conclusion that the Appeal Board acted within the scope of its jurisdiction and committed no reviewable error of law, it did so on the ground that the assessment of Crown land by the Assessor was a nullity from the outset and thus the Appeal Board could not have cured any defect in it. As a consequence of this finding, Finch C.J.B.C declined to embark upon an inquiry into the scope of the Appeal Board's powers under s. 57(1). In a brief concurring opinion, Newbury J.A. concluded the Appeal Board had exceeded its jurisdiction by failing to accord procedural fairness to Annacis. On the scope of s. 57(1), Newbury J.A. said at para 55: The wording of s. 57(1)(a) is broad, but in my respectful view it is not wide enough to permit a taxpayer to be added to the roll who has not had the benefit of any of the prior notice provisions and complaint procedures mandated by ss. 3 and of the Act. page 9

10 [49] It is thus apparent that the reasoning of Mr. Justice Smith in regard to the scope of authority granted to the Appeal Board has not been expressly or by implication discredited by the Court of Appeal. It is therefore open to me to consider his interpretation of the Appeal Board's jurisdiction even though it is not binding by the doctrine of stare decisis. [50] Although the Appeal Board's ability to determine its own process was in some respects limited by amendments to the Assessment Act in 2004, at which time s. 52(3) and (4), s. 54 and s. 56 were repealed, s. 55 of the Act continues to authorize the Appeal Board to hear evidence by way of an oral hearing or by written submission. Further, there is no restriction on the evidence that may be considered by the Appeal Board. In particular, the Appeal Board may hear evidence that was not before the Assessor or the review panel because of its authority to "reopen the whole question of the property's assessment". As a consequence, I find the interpretation of the Appeal Board's jurisdiction articulated by Smith J. in Annacis remains valid and is persuasive. [51] Turning to the Stated Case before me, I agree with the Respondent's position that it is beyond the terms of the question posed in the Stated Case to address whether the Assessor is bound to accept the records in the Land Title Office as conclusive evidence of the identity of the owner of property to be assessed. As a consequence, I must approach the question of whether the Appeal Board erred in law based upon an assumption that the Assessor did not err in relying on the Land Title Office records when assessing the Appellant as the owner of the properties. [52] Turning to this question of law, I find that the broad powers of review granted to the Appeal Board by Part 6 of the Act, and in particular, the power to "reopen the whole question of the property's assessment to ensure accuracy" of the rolls leads inevitably to a conclusion that the Appeal Board had jurisdiction to correct the assessment as requested by the Appellant. Whereas the Assessor may be bound by the records of the Land Title Office, the Appeal Board has an overriding responsibility to ensure the assessment rolls are ultimately accurate. Having evidence before it that conclusively determined that the records of the Land Title Office were incorrect, and that the Appellant was not the owner of the properties at the relevant time, it was within the Appeal Board's jurisdiction to make the appropriate correction to the assessment rolls by removing the Appellant's name as the owner of the properties. [53] There is no question that the definitions of "owner" and "registered owner in fee simple" found in the Assessment Act must prevail even in proceedings before the Appeal Board. Nevertheless, some common sense principles of interpretation must guide the application of these terms to an individual case. In particular, I find these definitions must be interpreted as subject to conclusive evidence that the records of the Land Title Office are in error. To hold otherwise, and to conclude that the records of the Land Title Office are conclusive and final determiners of the identity of the owner regardless of the true facts, would be incompatible with a principal object of the Assessment Act, which is to ensure the assessment rolls are accurate. [54] While the Appeal Board may be confined to adjudicate an appeal based upon the specific grounds advanced by an Appellant under s. 32(1) of the Act, this restriction does not limit the Appeal Board's authority and duty to ensure the assessment rolls are accurate within the context of the specific ground of appeal. To properly fulfill this statutory responsibility, the Appeal Board is clothed with the authority to hear evidence and consider the submissions of all interested parties. Having heard evidence that established the ownership of the properties conclusively in law, the Appeal Board had a duty to ensure the assessment rolls were amended to maintain their accuracy. [55] Moreover, to accept the Respondent's position that the Appeal Board's jurisdiction does not permit it to correct the assessment rolls in the circumstances at hand leads to an absurd result; namely, that a person will be assessed municipal taxes for property that it did not own at the relevant time. It is a well established principle of statutory interpretation that the legislature must be presumed not to intend absurd consequences. As the Supreme Court of Canada said in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 at para 27: page 10

11 [A]n interpretation can be considered absurd if it leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment... Sullivan echoes these comments noting that a label of absurdity can be attached to interpretations which defeat the purpose of a statute or render some aspect of it pointless or futile. [Citations omitted] [56] Lastly, at the time of the assessments for the taxation years 2001, 2002, and 2003 the Assessor had notice of an order of the Supreme Court of British Columbia establishing conclusively the identity of the owner of the properties as the federal government. This order, effective upon the date of its pronouncement, supersedes any information contained in the Land Title Office and acts as a transfer of ownership for the purposes of the Assessment Act. Any change in title required as a result of the Supreme Court order is merely an administrative act and does not operate to stay execution of the order. The Appeal Board was bound by the order vesting title of the properties in the federal government at the time of its pronouncement and the definition of owner contained in the Act must be read subject to the terms of that Order. DECISION [57] For these reasons I must answer the question posed in the stated case in the affirmative. The Appeal Board erred in law when it concluded that it lacked jurisdiction to amend the assessment rolls for the 2001, 2002, and 2003 taxation years by removing the Appellant's name as the owner of the properties. [58] Having concluded the Appeal Board erred in law, I order the Appeal Board to carry out the mandate found in s. 65(10) of the Act and direct the Assessor to make any amendment to the assessment rolls necessary to give effect to this decision. I refer this matter back to the Appeal Board for decision in accordance with this judgment. "The Honourable Madam Justice Bruce" page 11