PROCEDURE BEFORE THE
PROPERTY ASSESSMENT APPEAL BOARD
The Property Assessment Appeal Board is established under the Assessment Act to hear appeals from Property Assessment Review Panels relating to real property assessments, made for the purpose of local government taxation. To assist it in its processes, the Board has enacted Rules of Practice and Procedure.
This paper is intended to provide an overview of the Board’s appeal management, settlement conference and hearing processes, and how they may be applied, which may vary depending on the nature and complexity of an appeal. This discussion is intended primarily to assist agents, advocates and counsel in appeals involving more complex appraisal or legal issues.
The Assessment Act, the Board’s Rules of Practice and Procedure, and extensive other information (e.g. Frequently Asked Questions and Information Sheets) are available on the Board’s website at: www.assessmentappeal.bc.ca. The Web site is also an excellent research source and may be used to research any 1996 and subsequent Board decisions, if made in a contested hearing. (Orders withdrawing appeals, or made on the recommendation of the parties, are not posted on the Web site, but may be obtained from the Board office if required.)
All references in this paper to section numbers and rule numbers are to the Assessment Act RSBC 1996, chapter 20, as amended 1998 and the Board’s Rules of Practice and Procedure, effective April 1, 2000.
By December 31 of each year, the Assessor must complete an assessment roll and notify each person named in the roll. (The statutory requirements for making a roll will be dealt with by other presenters and will not be addressed here.)
Before January 31, any person may make a complaint against an entry in the assessment roll to the Property Assessment Review Panel, and the Review Panel must adjudicate the complaints before March 16.
By April 7, the Assessor must deliver a notice of the Review Panel’s decision, or its refusal to adjudicate a complaint, to the owner of the property and the complainant, if the complainant is not the owner.
By April 30, any person who is dissatisfied with the decision of a Review Panel or with its omission or refusal to adjudicate on a complaint, may appeal to the Board. Unless an assessment has been appealed to the Review Panel, and the Review Panel has either made a decision about the assessment or refused or omitted to make a decision on a valid appeal, the Board has no jurisdiction. The appellant is typically the property owner, but may be a tenant of the owner, a neighbour or other person, or the Assessor.
It is a bit of a misnomer to characterize proceedings before the Board as an "appeal". Although there must be a decision, omission or refusal of a Review Panel for the Board to have jurisdiction, an appeal to the Board is a de novo process. It is not an appeal from the record of the Review Panel but an entirely new proceeding. The Board is not restricted to the issues and evidence before the Review Panel, and any evidence filed and/or written submissions made to the Review Panel is not filed with the Board, unless one of the parties specifically files it. The only "evidence" the Board will have from the Review Panel is the decision of the Panel, which decision will simply confirm or amend the roll. The Panel’s reasons for confirmation or amendment are not stated, and are not available to the parties or the Board.
The Board begins appeal management as soon as possible after an appeal has been filed. Less complex appeals are scheduled for a hearing within six months of being filed. More complex appeals are appeal managed, as described below, before a hearing date is set. The Board’s goal is to hear all appeals within 12 months of having been filed. Details on how the board conducts its hearings, and its pre-hearing processes, are set out below.
As soon as possible after a hearing, the Board issues its decisions in writing, and sends a copy to all parties.
C. Deficiency and Validity Issues
Deficiency issues refer to information missing from a notice of appeal, which may be corrected; validity issues relate to the Board’s jurisdiction, which is set by the Act.
A notice of appeal must:
The Board may provide a reasonable time (typically three weeks) to correct a deficiency in the notice (section 50(5), Rule 9). If the deficiency is not corrected within the time allowed, the Board may dismiss the appeal or deem the appeal to have been withdrawn (Rule 9(2)).
Validity issues are not correctable. The Board either has jurisdiction, or does not. Examples of situations where validity issues arise include if an appeal has been filed after the statutory deadline of April 30 or where there is an issue whether there has been a decision, omission or refusal of the Property Assessment Review Panel.
On a party’s written application, or the Board’s own initiative, the Registrar may provide a written opinion whether the Board has jurisdiction in an appeal (Rule 10). The Registrar’s opinion may be disputed by written application, which will be referred to the appeal manager, who may either request written submissions or convene a hearing, generally by telephone, and make a decision. If the decision is that the Board does not have jurisdiction, the appeal is deemed to be invalid and the file will be closed. If the decision is that the Board has jurisdiction, appeal management will commence, as in the ordinary course.
The courts have held that the statutory requirements for filing an appeal are a code that must be strictly complied with and the Board has no discretion to extend the date for filing an appeal (Tiberon Investments Inc. and Gandalf Enterprises Ltd. v. Assessor of Area #01 – Saanich Capital (1985), Stated Case 203 (SCBC); Lennox and Page v. Assessor of Area #01 – Saanich Capital (1987), Stated Case 281, (SCBC)). The only circumstances where the Board has been found to have jurisdiction on a late appeal are where the Review Panel decision was not received due to a third party intervention, such as non-delivery by the Post Office (Takaya Holdings v. Area 08, October 24, 1997, 1997-08-00067). An appeal must be either received by the Board or postmarked in Canada by April 30 to be valid.
D. Appeal from the Board
A Board decision can be appealed by a Stated Case, on a question of law only (section 65). A request must be filed with the Board within 21 days of receipt of the Board’s decision, which time limit is mandatory. The Board must file the stated case with the Court within a further 21 days, but an appellant is not prejudiced if the Board fails to file the case within that time limit (Assessment Commissioner v. Woodward Stores, (1981) Stated Case 142, (SCBC)).
The party appealing must set out the question or questions of law for the opinion of the Court, and the Board has no right to comment on or change the wording of the questions (Allard Contractors v. Assessor of Area #12 – Coquitlam (1984), Stated Case 190 (SCBC)).
The Board’s role in stating the case is limited to setting out the facts relevant to the question or questions of law, and providing the courts with the relevant exhibits. Where time permits, the Board will circulate a draft of the Stated Case to the parties for comment before filing it.
In addition, a case may be stated to the court during the proceedings, before a final decision is made, at the initiative of the Board or the request of a party (section 64), but where a party requests the stated case, the Board has discretion whether to do so. On judicial review proceedings from the refusal of the Board to state a case from an interim decision, the Court has said that the Board should generally be permitted to complete its process and render a final decision before judicial review is entertained. Circumstances where interim decision may be reviewed include challenges of an excess of jurisdiction or a denial of natural justice (City of Vancouver v. Assessment Appeal Board et al (1996), Stated Case 368 (BCCA); Musqueam Holdings Ltd et al v. Assessor of Area #09 – Vancouver (1996), Stated Case 391 (SCBC); Area 11 v. Fraser River Harbour Commission, Letter decision March 23, 2001, 1999-11-00016 et al).
If a case is stated under section 64, the Board must suspend its proceedings pending the Court’s decision.
A stated case is to be brought on for hearing within 30 days of filing, but typically it will be set down before a judge in chambers within the 30 days, and then adjourned to a later date.
A decision of the Supreme Court may be appealed to the Court of Appeal, with leave.
II. Duties and Powers of the Board
The Board’s jurisdiction is to hear appeals from a decision, omission or refusal of a Property Assessment Review Panel (section 50), and an appeal must be based on one or more of the grounds referred to in section 32(1):
The Board is required to determine the actual value of land and improvements (section 57(1)(b)). To fulfill that duty, the Board has the power to "reopen the whole question of a property’s assessment" to ensure accuracy of the assessment and equity with other assessments in the municipality or rural area (section 57(1)(a)).
With its jurisdiction characterized by the Court as "inquisitorial", and not the usual "adversarial" process, the Board is not restricted to only those issues raised by the Appellant, and may add issues raised by the Respondent or on its own initiative.
The Board may also refuse to permit an Appellant to withdraw an appeal, and may also continue its inquiry even if the parties make a joint recommendation. (Quintette Coal Limited v. The Assessment Appeal Board of British Columbia et al, (1985) Stated Case 243 (SCBC); Captains Enterprises Ltd. et al v. Assessor of Area #13 – Dewdney-Allouette, (1988) Stated Case 249 (SCBC),(BCCA); Canpar Industries Ltd. v. Assessor of Area #17 – Penticton, (2000) Stated Case 432 (SCBC); St. Helen’s Hotel Vancouver) Ltd. v. Assessor of Area #09 – Vancouver, (1984) Stated Case 189 (SCBC)).
This inquisitorial mandate is critical to understand when filing an appeal. There may be a downside to filing an appeal. The assessment, instead of being decreased, may be increased. Or one part (ie class) may be corrected, but another aspect (ie value) may also come under scrutiny, perhaps with negative consequences.
The Board also has the duty to facilitate just and timely resolution of appeals, and may make any order it considers necessary, subject to any requirements or restrictions in the regulations (section 54(1)) (No such restrictions have been enacted). The Board has also made Rules of Practice and Procedure for the conduct of proceedings before it (section 46(1)) that provide for, amongst other things, appeal management processes (which are discussed below in detail). Also, as a quasi-judicial administrative tribunal, the Board must adhere to the principles of natural justice.
The Board’s duty to determine actual value and ensure accuracy of the roll may at times conflict with its duty to facilitate the just and timely resolution of appeals in accordance with its rules and the principles of natural justice. Examples of such conflicts include:
In these circumstances the Board must consider those competing duties, to determine whether to exercise its discretion to proceed. Some of the factors the Board may weigh include:
Just and timely resolution:
Actual value and accuracy:
(For recent discussions of these competing interests see: 2725321 Canada v. Area 10, 1999 PAABBC 19990337; Fletcher Challenge v. Area 04, 2000 PAABBC 20002667)
The Act also gives the Board the power:
The Board may dismiss an appeal for non-compliance with a Board order or may make any other order it considers appropriate including restricting a party’s continued participation in an appeal or a party’s ability to submit evidence and make submissions (sections 54(3) and (5)).
III. Board’s Rules of Practice and Procedure
The Board’s Rules of Practice and Procedure were enacted in June 1998, with minor amendments in October 1998, February 1999 and April 2000. To ensure the Rules continue to achieve their purpose of "just and efficient settlement or adjudication of appeals" as set out in Rule 1, the Board undertakes an annual Rule Review, soliciting input and feedback from the assessment community.
The Rules are intended to provide an appropriate level of guidance and direction, with pre-hearing intervention as necessary, to ensure appeals are resolved appropriately, by withdrawal, recommendation, or hearing. Where a hearing is necessary, the rules are intended to ensure that the hearing proceeds in an orderly and proper manner and hearing time is used effectively.
If a party fails, without reasonable excuse, to comply with the rules or with an order of the Board, the Board may limit a party’s participation in an appeal, limit the evidence a party may present, dismiss the appeal, deem the appeal to be withdrawn, or make an order for costs (Rule 4).
Of particular note is Rule 19(4), requiring the pre-hearing production of experts’ reports three weeks before the start of a hearing. Unless this time limit is shortened or lengthened in appeal management, this 21day time limit will apply.
A. Appeal Management
The goal of appeal management is to encourage resolution without a hearing, if appropriate, or, if a hearing is required, to ensure that the hearing proceeds in an effective and efficient way. All of the more complex appeals are subject to some level of appeal management, which is conducted by the appeal manager assigned by the Board being one of: the Chair, a Vice Chair or the Registrar.
Once assigned, the appeal manager is informally seized of an appeal, in the sense that he or she will supervise the appeal through to a hearing or resolution, making orders and deciding any interim applications, and possibly facilitating any settlement conference. While appeal management is "with prejudice", typically the appeal manager will not hear and decide the appeal if it proceeds to a hearing unless the parties request it or have no objection. (Note however, the Rules do not preclude the appeal manger from hearing any appeals he or she may have appeal managed). Also, under the Board’s internal processes, the appeal manager will typically review for approval any applications for withdrawal and any joint recommendations for changes to the roll in those appeals over which he or she has appeal management responsibilities.
Rules 13, 14 and 15 essentially provide a "menu" of options. Under these Rules, the appeal manager may require the parties to provide further information about an appeal, complete written statements of issues, evidence and legal principles, or participate in an appeal management conference. It is not intended that all options will be applied in every case; rather, the appeal manager, in consultation with the parties, will develop and apply an individual appeal management plan for an appeal.
Typically, appeal management starts with a telephone Appeal Management Conference (AMC) between all of the parties and/or their tax agents or counsel and the appeal manager. An AMC may be held at the request of a party, or on the Board’s initiative. The number and length of the appeal management conferences held, and the extent of the Board’s involvement, will depend on the complexity of the appeal and the degree of co-operation between the parties. Some appeals will only require one AMC, and others may require numerous AMC’s.
While most AMC’s are conducted by telephone, an AMC may be conducted in person. For example: where a large number of people are involved, where a specific application is being dealt with that may involve numerous references to documents, or it is simply easier for the parties and the appeal manager to deal with the application in person.
While AMC’s are somewhat less formal than a hearing, a certain amount of formality applies: last names are used, parties are given an opportunity to raise and speak to their own and respond to the other party’s procedural issues. An AMC is usually directed to procedural matters, so it is not to be taken as an opportunity to plead the merits of your case, unless that is raised as a specific issue for the appeal manager to decide.
Following an AMC, the appeal manager will send the participants a letter summarizing the discussions and setting out any orders made by him or her and the dates for compliance. Unlike the court process where the parties prepare the order, the Board prepares the orders, to keep the process moving forward in a timely way.
In the course of appeal management, the appeal manager will encourage, and may order, the parties to:
Where appropriate, parties are encouraged to "self-manage", or undertake these activities without the appeal manager’s direct and immediate involvement. In these cases, the appeal manager may simply require that status reports be filed, and/or periodically check on the progress being made. In other cases, the appeal manager will be more directly involved on an on-going basis, making extensive and detailed orders.
If it becomes apparent the appeal cannot be resolved without a hearing, the appeal manager may set the hearing date and make orders to deal with any pre-hearing matters including, advance production of:
setting dates for compliance. Typically this material is produced by the parties on the same date, but the Board may order staggered production.
Under Rule 20, the Board may issue a summons to a person to testify or produce records, with rule 20(2) setting out the criteria and Rule 20(5) setting out the process to vary or vacate the summons. A person who fails to attend a hearing or give evidence in response to a summons may be liable to commitment for contempt on application to the Supreme Court (section 58).
In setting dates, the Board may change the standard 21day timeline for expert reports to be produced. While typically both parties produce the documents on the same date, the Board may order staggered production.
The specific goal of these AMC’s is to ensure that all parties have sufficient information to assess their own case and that of other parties, to eliminate surprise and to reduce the necessity for adjournments.
On the more complex or contentious appeals, the Board may schedule a final AMC, after all pre-hearing compliance dates have passed, to ensure there has been compliance and all procedural matters have been dealt with, in advance of the hearing.
B. Settlement Conferences
At a settlement conference, all parties meet with a Board member, usually the appeal manager, to discussion some or all of the issues in an appeal with a view to resolving them without a hearing.
A settlement conference differs from appeal management in that settlement conference discussions are confidential and without prejudice to the positions the parties may wish to take at a hearing if a settlement is not reached. The Board member may take an active role in the discussions, may offer non-binding opinions on any issue, or give an opinion on the likelihood of success on any issue. Note that if the appeal is not settled and proceeds to a hearing, the Rules preclude the member conducting the settlement conference from hearing and deciding the appeal, unless the parties consent.
(section 54(2)(f) and Rule 16).
A settlement conference also differs from mediation in a private civil dispute, in that any settlement reached must not just satisfy the parties but must also meet the requirements of the Assessment Act for an accurate assessment, arrived at in an equitable manner.
Any settlement agreement must be presented by the parties to the Board in the form of a joint recommendation, and must be approved by the Board. To ensure the requirements of the Act are complied with, a Board member other than the member who conducted the settlement conference will review the recommendation for approval.
Rule 16(2) requires the parties, at least three days before the settlement conference, to provide the Board and the other parties with a concise written summary of the issues, the anticipated evidence, and any applicable legal principles. If expert reports have been prepared, they must also be provided. If not, the parties must provide a written statement describing the anticipated opinion of the expert.
The Board will return any documents produced for or during the settlement conference to the parties and they will not form part of the Board’s record, unless the parties consent. In this manner, sensitive financial information can be produced and discussed in the context of the settlement conference, and form the basis for a resolution of an appeal, without becoming part of the public record.
Even if the appeal is not resolved at the settlement conference, the experience often assists in enhancing the relationship between the parties and building a framework for future discussions that may still lead to a resolution without a hearing.
If a settlement is not reached, the appeal may be scheduled for further appeal management or for hearing on one or more issues.
Parties who have participated in settlement conferences have commented favourably on the process, and many of them are now requesting a settlement conference as part of their standard process before a hearing.
The Board may hold hearings in any manner it considers appropriate, including by:
(section 55(1) and Rule 18(1)).
Most hearings are in person, but where appropriate (for example, the facts are not in issue and the appeal turns on legal argument), hearings are conducted by written submission. Most validity hearings and contested interim applications are conducted by a combination of written submissions and telephone hearing.
2. Hearing panels
A hearing panel may consist of one or more members. Typically, more than one member will be assigned only if the issues are complex or the hearing is anticipated to be lengthy. In the case of a tie decision, the decision of the panel chair governs (Assessment Act, section 44(3), (4) and (5)).
3. Hearing procedure
The Board is not permitted to take evidence in camera; hearings must be open to the public (section 67). (See also: City of Vancouver v. Assessment Appeal board, et al, (1996) Stated Case 368 (BCCA))
The following is the standard hearing procedure, but in any particular appeal, different procedures may be set in appeal management. Counsel and agents should always check for any changes that may have been made in appeal management.
While the Supreme Court found no party bears the burden of proof (Assessor of Area #10 – New Westminster v. Haggerty Equipment Co. Ltd., (1997), Stated Case 596), most "in person" hearings follow the traditional adversarial model, with the Appellant’s case proceeding first, followed by the Respondent’s case. However, if thought appropriate, the Board may require the Respondent to proceed first, or may re-arrange the order of the hearing to accommodate witness schedules.
Opening statements are encouraged, particularly in the more complex appeals.
Witnesses at a Board hearing are required to testify under oath or solemn affirmation, giving direct testimony, followed by cross-examination, and re-direct if necessary. The Board may ask questions of a witness as well. Following the completion of all of the evidence, each party provides argument: Appellant, Respondent, Appellant reply. (See Rule 18(4))
While the Board’s proceedings are less formal than a court trial, they are not informal, and parties are expected to act appropriately. The level of formality tends to increase with the complexity of the appeal and involvement of counsel.
Hearings are recorded, and a transcript may be arranged by a party, at the party’s own cost, and with the requirement to provide a copy to the Board.
As noted above, the hearing is a de novo proceeding and any evidence filed and/or written submissions made to the Review Panel is not filed with the Board, unless one of the parties specifically files it.
The Board is not bound by the technical rules of evidence and may admit any evidence except evidence which is privileged under the laws of evidence (Assessment Act, section 56).
Also as noted above, no party bears the burden of proof, and it is up to the parties to put before the Board whatever evidence they think would be of assistance. The Board is required to weigh all of the evidence and may accept or reject a witness’s evidence and a party’s documents, in whole or in part. As such, a party’s best interest is to present the evidence which best supports their case.
Similarly, even if the appellant presents no credible or reliable evidence, the Board may not entertain a "no evidence" motion by the respondent. (Incentive Enterprises Ltd. et al v. Assessor ofArea #5 – Langley/Matsqui/Abbotsford (1996), Stated Case 387 (SCBC)).
Advance production of documents, including expert reports, is typically dealt with in appeal management. If not, the Rules govern, and Rule 19(4) requires that any expert evidence to be relied on must be produced to the Board and to the other parties 21 days in advance of the hearing.
However, simply because a document or report is produced in advance, does not automatically mean it will be admissible. All evidence, to be admissible, must pass the test of relevancy. Materiality may also be a consideration. Also, while the hearsay rule is not strictly applied, consideration will be given to a lack of opportunity to cross-examine, especially on expert reports. Unless a party objects to the Board accepting evidence, the Board will not usually, on its own initiative, refuse to accept evidence. As always, simply because evidence is admissible, does not mean it will be given much or any weight.
Applications for adjournment must be in writing, and other parties will have the opportunity to respond, in writing or at an AMC. The Board may refuse a request even if all parties agree to it, and may impose terms and conditions on an adjournment, including the payment of costs. Once an appeal is set for hearing, the Board will not usually grant an adjournment without good reason and will only grant an adjournment if it will not prejudice the other party or the board’s own processes (Rule 22).
Unlike a civil proceeding in the courts, a successful party is not entitled to costs as a matter of course. A party is only entitled to costs at the discretion of the Board, and costs are only awarded where the Board determines that:
An award of costs may be all or part of the actual costs of a party, intervenor or the Board incurred as a result of the conduct complained of. The Tariff of Costs, a schedule to the Rules, is a guideline for assessing Board costs.
The Board has awarded costs to a party where the other party failed to:
The Board made an order for its costs against a party who:
Decisions declining to award costs include: Ross v. Area 10, November 20, 1998, 1998-10-00001; Area 10 v. Carter et al, March 25, 1999, 1998-10-00029 et al; Sutton’s Funeral Directors v. Area 06, 2000 PAABBC 19992050; GDP Investments v. Area 05, 2001 PAABBC 20004790.
An order for costs may be filed in the Supreme Court and enforced as an order of that Court (section 60(2)).
The Board’s power to order a party or intervenor to pay all or part of the costs of another party or the Board, as set out in section 60 of the Act, is subject to the regulations, none of which have been enacted.
Advocates and counsel should expect the Board to move appeals forward to resolution or a hearing in a fairly timely way. Once filed, an appeal will not just sit at the Board, waiting on counsel to take action, as it might in civil court or perhaps other boards and tribunals.
On filing an appeal, or very shortly thereafter, advocates and counsel should know the issues they want to raise, and have a good sense of the evidence they have or need to prove their case. They should meet early with the other side. Demands for documents should be reasonable, and production of your client’s records should be expected. Parties are encouraged to be proactive and "self manage" their appeals, and to request an AMC when an impasses is reached.
To date the Board’s experience, confirmed by the parties’ anecdotal reports, has been that, for the most part, appeal management has been successful in resolving appeals that should be resolved without a hearing, and ensuring that those that go to hearing proceed in an efficient and effective way. The hearings themselves have been focussed and shorter, with fewer adjournments.
Statistics on the Board’s progress and the success of appeal management are available on its Web site, referred to above.
The Board welcomes feedback on appeal management and the hearing process, and invites your comments or suggestions on how it can be improved. (Information Sheet 16, Comments, Complaints and Suggestions.)
Effective May 1, 2001, the Board will adopt a new way of identifying its decisions, which will make it easier for parties and other interested persons to find and refer to those decisions. The new reference style is similar to the style used by the Supreme Court of BC and other Canadian courts.
As an example of the new style, a Board decision issued in 2001 in an appeal by James A. Smith against the Assessor of Area #09 – Vancouver would be identified as: Smith v. Area 09 (2001 PAABBC 20001648).
The key components of the new style are:
Use the Decision Number to obtain a Copy of a Decision
You can obtain a copy of a Board decision by simply contacting the Board office and asking for it by decision number, or by searching the Board’s Web site, using the decision search feature and entering the decision number in that search field.
Use the Decision Number to search for other Cases that refer to that Decision
You can use the Board’s Web site to search for any other cases that refer to a decision using the decision search feature and simply entering the decision number in the search field for customized inquiries.
All decisions, including those decisions made before May 1, 2001 that do not have a decision number, can still be searched using other criteria, such as appellant name.
Also, due to variations in page numbering that can occur when a decision is printed from the Board’s Web site, starting May 1, 2001, the paragraphs within Board decisions will be consecutively numbered.