ASSESSMENT APPEAL BOARD
1996 ANNUAL REPORT
The Assessment Appeal Board is established pursuant to the Assessment Act, R.S.B.C. 1979, Chapter 21, Part V. The Board is responsible for registration, administration, scheduling and hearing of appeals filed from the decisions of the Courts of Revision. The Board also has responsibility for hearing appeals pursuant to the Forest Land Reserve Act, R.S.B.C. 1979, c. 140.6.
The Board is composed of the Chair/CEO, one Vice Chair and, currently, 17 part time Board Members; the average term of appointment has been two years. The primary function of Board Members is to conduct hearings and render decisions. The staff includes a Registrar and four full time employees plus on-call recording secretaries.
The Board conducts hearings at its Richmond office and in various locations throughout the Province. During the 1996 calendar year, the Board was able to schedule 915 hearings over 581 hearing days. (See Appendices 6(a) and (b) for the breakdown by area and the number of appeals actually heard).
The current system of property assessment, including the appeal procedure to the Courts of Revision and the Assessment Appeal Board, was introduced to British Columbia in 1974. There have been many amendments to the Assessment Act and the Regulations since that time, but the basic structure has remained: the British Columbia Assessment Authority, a crown corporation, has responsibility for determining property assessments throughout the Province and the Courts of Revision and the Assessment Appeal Board have responsibility for determining appeals from those assessments. Appeals involve issues of actual value for land and improvements, application of the Major Industrial Properties Manual, exemptions from assessability, classification, and other issues. The Board has responsibility for interpreting provisions of the Assessment Act as well as a number of other statutes and regulations.
During the past year, the Board completed an office reorganization. As a result of the new structure, the Board has been able to initiate more pre-hearing procedures and has been successful in reducing the accumulated backlog of appeals. (See discussion under Appeals and Hearing Scheduling).
AIMS AND OBJECTIVES
The following aims and objectives, formulated in 1993, have continued to be the Board's priorities:
1. To provide parties with impartial, fair and professional adjudications.
2. To strive for a consistent quality in the hearing process and decisions through training and continuing education for Board Members.
3. To maintain a high level of quality services.
4. With consideration for the assessment appeal calendar, to schedule and complete an optimum number of appeals within 12 months following the filing of appeals.
5. To provide the parties with written decisions as soon as possible following the hearings.
6. With consideration for budgetary concerns and the assessment appeal calendar:
(a) to implement procedural changes to reduce costs and to complete adjudications in a timely fashion, and
(b) to schedule as many hearings as possible in the Assessment Appeal Board offices in Richmond.
In January 1996, six Board Members had their terms renewed and, in February 1996, Wesley Umphrey, AACI, was appointed to the Board, bringing the total number of Board Members to nineteen. The six reappointments are Sukhraj Bal, Diane D'Angelo, Robert Fraser, Barbara Passmore, John Symonds and Grace Taylor.
Appendix 1 contains a list of Board Member appointments showing the regional representation, terms of appointment and gender distribution. With the exception of the Chair/CEO, all Board Members are part-time, per diem appointments.
Board Member qualifications include appraisal theory and valuation, law, real estate, experience working with municipalities and on school boards, and other adjudicatory positions including the Courts of Revision.
The composition of the Board staff over the past three years has been five full-time employees and a number of on-call Recording Secretaries. All of the Board's staff are excluded from membership in the B.C. Government Employees Union under the Public Service Labour Relations Act, R.S.B.C. 1979, Chapter 346, s. 1.
Appendix 2 contains the Organization Chart for the office.
During 1996, the Board completed an office reorganization which culminated with the hiring of Richard Rogers to the position of Board Registrar and Administrator, at Management Level 3, and Leslie Gilker to the position of Hearing Coordinator, Clerk 4.
Mr. Rogers was previously engaged in the practice of law on Vancouver Island and was employed for four years with the Loans Administration Branch, Ministry of Finance. His experience and expertise have proven to be a valuable asset to the Board. He has assumed responsibility for file management and pre-hearing procedures as well as budgetary and other financial matters.
Ms. Gilker brought extensive experience from her three years of employment with the Workers Compensation Review Board. Her work as the hearing coordinator is enhanced by her previous experience in the administrative tribunal mileau.
Corrine Pick, Financial and Administrative Clerk, has continued to be a mainstay for the Board's operations. Ina Vonk and Jennifer Torrance are acting in the newly reclassified Clerk Stenographer 3 positions. During the past year of completing the office reorganization, these three employees have shouldered considerable responsibility and have demonstrated loyalty, commitment and professionalism.
The Board is fortunate in having diligent employees who work together to produce a cohesive and high quality service.
BOARD MEETINGS AND PROFESSIONAL DEVELOPMENT
Full Board Meetings provide Board Members with opportunities to exchange views on recent cases, to discuss appraisals principles and issues which arise during hearings and to participate in training and educational seminars. They also provide opportunities for discussion of the Board's Rules of Practice and Procedure. These meetings enhance the Board's ability to continue to provide quality and consistency in hearing procedures and decision making.
Full Board meetings and training sessions were held in March, July and October 1996. Fifteen Board Members and the Board's Registrar attended the educational seminar hosted in October 1996 by the newly formed B.C. Council of Administrative Tribunals (BCCAT).
TIMELINESS OF DECISIONS
Over the past three years, the Board has made a concerted and successful effort to reduce the time between hearings and the release of the decisions. At the Board meeting in October 1996, the Board adopted a guideline of 90 days following the last day of hearing for decisions to be issued.
The period of September through November is traditionally the busiest hearing time with Board Members hearing as many as six appeals per day. Despite this very heavy scheduling, most of the decisions are being rendered within the guideline.
APPEALS AND HEARING SCHEDULING
Appendices 3 and 4 contain a variety of statistics on appeals commenced in the 1996 roll year and comparisons with previous years.
As indicated in Appendix 3, 1,238 appeals were commenced in 1996, involving more than 4,800 folios. Appendix 3 also shows a breakdown of the appeals by assessment area and classification. Appendix 4 reveals that there has been a decrease in the number of appeals commenced and folios appealed since the annual roll was reintroduced in 1993. Those figures may also be compared with the last biennial roll, in 1991, when 2,433 appeals were filed involving 13,631 folios. 344 appeals, involving 2,176 folios, were commenced in the second year of that roll.
The following table provides a summary of the outstanding appeals as of December 31, 1996 and comparisons with December 31, 1995 and 1994:
As indicated above, the Board still has a backlog of outstanding appeals from previous years’ rolls. The backlog stems primarily from the large number of appeals commenced in 1993 and 1994. Virtually all of the outstanding appeals from previous roll years are for non-residential class properties. Many of the appeals are awaiting the outcome of cases involving similar issues, or have appeals from previous years that are still being adjudicated, either by the Board or by a Superior Court. Many of these "test cases" and previous years’ appeals were heard or decided in the past year, which resulted in the resolution of some of the pending appeals, with others to be scheduled for hearing or resolved in 1997.
Appendices 5(a) to (e) provide breakdowns of the outstanding appeals for the period 1987 to 1992 and for each of the roll years 1993 to 1996, as of December 31, 1996. As indicated in Appendix 5(a), there is essentially no backlog of appeals for the roll years 1987 through 1992. The outstanding appeals from those years are either scheduled for hearing or are awaiting a decision. Most of the appeals waiting for a decision are forest company appeals (Fletcher Challenge and related companies) which are the subject of a judicial review in the Supreme Court. The Appellants are seeking a declaration that the Land Value Schedules are ultra vires the Assessment Act. Those appeals have not been heard by the Board.
The Board anticipates that it will deal with the bulk of the backlog of appeals from the 1993 and 1994 roll years during 1997.
Appendices 6(a) and (b) show the number of hearings and hearing days scheduled and heard by the Board during 1996. With the cooperation of the Assessment Authority, the Board has made some progress in scheduling hearings during all periods of the year. However, it remains difficult to schedule hearings during Courts of Revision time (January, February and March), during peak summer vacation period (July and August) and during assessment roll preparation (December).
Last moment adjournments and resolutions of appeals continue to be a problem for the Board. Based on the figures in Appendix 6(b), only 43% of scheduled hearings actually proceed. The Board continues to consult with the primary participants in Board hearings to develop new approaches to scheduling hearings that will address these problems.
The Board received one appeal under the Forest Land Reserve Act in 1996.
STATED CASES AND JUDICIAL REVIEWS
Appeals from Board decisions are by way of stated case to the Supreme Court of British Columbia (Assessment Act, Section 74(2)). Stated cases must be filed within 21 days of receipt of the Board decision. Appeals may be taken from the Supreme Court to the Court of Appeal.
Pursuant to section 74(1), the Board may state a case to the Supreme Court during a hearing for an opinion from the Court on a question of law arising in the appeal. In these situations, the Board must suspend the proceedings until the opinion is rendered. Since the Board has not issued a decision, this form of stated case is not an appeal of a final decision.
There is also a right of appeal, rarely used, from Board decisions through judicial review if there is no right of appeal by stated case. There is no time limit for filing judicial reviews.
For the Roll years 1993 through 1995, 74 appeals by way of stated case were filed. Approximately 75% were filed by the property owner and 25% by the B.C. Assessment Authority. As of December 31, 1996, 14 had been abandoned, nine were still before the Supreme Court and 51 had been decided by the Supreme Court. Of these 51, 13 had been taken on further appeal to the Court of Appeal. At the Supreme Court level, the Board was found to have erred in 19 cases and was upheld in 32 cases.
As of December 31, 1996, for the 1995 Roll 14 stated case appeals had been filed; for the 1994 Roll, 23 had been filed; for the 1993 Roll, 36 had been filed.
For the 1996 Roll, only 3 Stated Cases had been filed as of December 31, 1996. All involve single family residential properties and were filed at the request of the property owner. One has been withdrawn and the other two are pending in the Supreme Court.
From the 1993 Roll to the present, the Board has filed eight stated cases pursuant to section 74(1). One was during the course of the Lord Realty appeal, infra, one involved a constitutional challenge to BC Reg. 298/85, (Farm Classification) and 6 involved a constitutional challenge to amendments to B.C. Reg. 438/81, Prescribed Classes of Property Regulation.
Stated Cases of Note:
Assessor of Area #09 - Vancouver v. Lord Realty Holdings Ltd., (B.C.C.A.), Vancouver Registry No. CA020021, Stated Case 359, October 7, 1996:
On application by the Appellant, the Board ordered that the Respondent/Assessor produce certain information which the Board concluded was relevant and material and not protected by confidentiality pursuant to section 15 of the Assessment Act. The Board stated a case for the opinion of the Supreme Court pursuant to subsections 74(1) and 74(2).
The Court of Appeal held that information collected by the Assessor pursuant to section 15 is not protected by confidentiality in the course of the Board's hearings "when that information was found to be necessary to a fair hearing after a proper enquiry during which the interests of the affected third parties were considered." On the issues of relevance and materiality, the Court of Appeal held that a court should not interfere with the Board's decision unless it was plainly wrong and that, generally, relevance is considered to be a question of fact, not law.
The hearing of this appeal has been suspended since September 1994; it will be reconvened in 1997.
Incentive Enterprises Ltd. (Aggressive) et al v. Assessor of Area #15 - Langley/Matsqui/Abbotsford, (B.C.S.C.), Vancouver Registry No. A960925, September 13, 1996:
At the commencement of the hearing before the Board, the Appellant's agent, Edapho Consultants, raised a preliminary objection that the hearings had been improperly scheduled and sought an adjournment. The Board refused the adjournment. The agent was not prepared to present any evidence and the Assessor made a "no evidence motion." The Board accepted the application and dismissed the appeals, without taking evidence from the Assessor.
On appeal, the Supreme Court held that the Board had not erred in finding that the hearings had been properly scheduled or in refusing to grant the adjournment. However, the Court held that the Board had erred in granting the "no evidence motion." The Court found that "proceedings before the Board are essentially inquisitorial and not adversarial" and that the Board was in error when it "imposed a burden of proof on the appellants and dismissed the appeal on no evidence."
Judicial Reviews of Note:
There have been two judicial reviews filed from Board decisions in recent years.
City of Vancouver v. Assessment Appeal Board, Assessor of Area 09 - Vancouver and Concord Pacific Holdings Ltd., (B.C.C.A), Vancouver Registry No. CA021039, May 15, 1996:
The judicial review was filed by the City of Vancouver seeking a declaration that the Board had exceeded its jurisdiction by taking evidence in camera and seeking an order that the City be granted access to the in camera evidence. The City was not a party to the proceedings but made an application to the Board to be granted access to evidence that had been accepted in camera. The Board denied the application on the basis that there would be greater prejudice to the Appellant in allowing the City access than there would be to the City by denying access, noting that the City has a right to appeal the Board's final decision. After rendering the decision not to allow the City access to the evidence, the Board heard and denied an application by the City to state a case pursuant to section 74(1).
The Court of Appeal held that the Assessment Appeal Board does not have jurisdiction to conduct hearings in camera, "given the absence of express provision...in the Assessment Act, and the public nature of the assessment process." This is a decision that could have ramifications for other administrative tribunals.
Having found that the Board should not have taken evidence in camera, the Court of Appeal found it would be unfair to the Appellant to allow the City access to the evidence and instead ordered the Board to expunge the physical evidence and transcript from its record.
Another question raised in the judicial review, by the Respondents, was whether the City should have filed a stated case pursuant to section 74(2) rather than filing for judicial review. The Court of Appeal ruled that stated cases under section 74(2) may be brought only after a final decision of the Board. The Court clarified that section 74(1) is for interlocutory questions of law arising during an appeal and that the Board has the discretion to decide whether to suspend the proceedings to state a case as was requested in this instance.
Considering the issue of whether the judicial review was premature, the court stated that it "should rarely exercise its discretion to permit a petition to be brought in the middle of a tribunal’s proceedings," but that the unique facts in this case rendered it appropriate to do so.
This hearing has been adjourned since June 1995 when the judicial review was filed. It was the view of all parties and the Board that it would be inappropriate to continue the
hearing, given the impact the Court decision could have on the evidence being tendered. It is being reconvened in March 1997.
Musqueam Holdings Ltd. and Musqueam Properties Ltd. v. Assessor of Area 09 - Vancouver, City of Vancouver, UBCM, Corporation of Delta, Attorney General of Canada, (B.C.S.C.), Vancouver Registry No. A962646, November 28, 1996:
The Appellants claim that the property under appeal is a special reserve of the Musqueam Indian Band pursuant to section 36 of the Indian Act, R.S.C. 1985, c. I-5. The Court of Revision agreed with the Appellants and ordered that the property be removed from the Assessment Roll as not subject to the assessment jurisdiction of the City of Vancouver; the Assessor appealed to the Board.
The Board granted an application by the City of Vancouver to be added as a party, which is an entitlement under Section 68 of the Assessment Act.
The Attorney General of Canada, Union of British Columbia Municipalities and Corporation of Delta also applied to the Board to be added as parties to the appeal. After a hearing involving the parties and the applicants, the Board granted the applications of the Attorney General of Canada and the Union of British Columbia Municipalities, noting that the latter would be able to represent the interests of Delta. There was a dissenting decision.
The Appellants applied to the Board to state a case pursuant to section 74(1) of the Assessment Act, which would have had the effect of suspending the proceedings
before the Board. When the Board denied this application, the Appellants sought judicial review to reverse the Board's decision adding the parties.
The Supreme Court ruled that the judicial review was premature; that, on procedural matters, the Board is master of its own proceedings, concurring with the Court's decision in City of Vancouver v. Assessment Appeal Board, et al, supra; and that those proceedings should not be interfered with, unless there are exceptional circumstances, until a final decision has been rendered by the Board.
The Lord Realty Holdings Ltd. and Concord Pacific Holdings Ltd. cases are extreme examples of occasions when the Board's hearings have been interrupted by interlocutory applications. Delays such as these pose considerable difficulties for the parties and the Board. Additionally, the municipalities' and the public's interest in quick resolution of appeals is thwarted. The Board is hopeful that the combination of the Court of Appeal decisions in City of Vancouver v. Assessment Appeal Board, et al, and Musqueam Holdings Ltd. will reduce the incidence of delay during the hearing process.
In 1993, in response to the Annual Roll and budgetary concerns, the Board undertook a review of the Rules of Practice and Procedure. As these Rules have a considerable impact on hearing participants, the Board arranged for consultations to elicit opinions and shared a draft of the proposed Rules for circulation and discussion. The Board has continued to receive comments and recommendations from members of the assessment community and has continued to engage these participants in discussions.
On June 21, 1996, the Board held a facilitated meeting attended by property appraisers, property agents, representatives of the Assessment Authority and the Assessment Authority Board of Directors, legal counsel from the private bar and from the Ministry of Attorney General and the Assistant Deputy Minister of the Ministry of Municipal Affairs and Housing. The Board was represented by the Chair, Registrar and two Board Members, including the Vice Chair.
The agenda was structured to hear views on methods by which the Board could reduce the time between the filing and completion of appeals and reducing the time required in hearings. The discussions included pre-hearing procedures, scheduling of appeals on a "list" basis similar to the Courts, awarding of costs to ensure timely compliance with Board directives, and other topics. The Board received some excellent suggestions and appreciated the various views expressed. Subsequently, a number of the participants wrote to the Board acknowledging the value of the forum and encouraging on-going discussions.
In addition to the June 21, 1996 meeting, over the past year the Board has participated in seminars and discussions with many sectors of the community, including the Canadian Property Tax Association, property agents, the B.C. Assessment Authority, the Union of British Columbia Municipalities, and legal counsel from the private bar.
In February 1996, the Policy and Research Branch of the Ministry of Municipal Affairs and Housing initiated a review of the statutory provisions governing assessment appeals and some of the current procedures. The Assessment Appeal Board continues to be actively involved in that review.
In April 1996, the Chair of the Board attended the annual conferences of the National Institute of Administrative Tribunals and the Council of Canadian Administrative Tribunals and participated in a panel discussion with municipal and property assessment tribunals across Canada.
Over the past year, the Chair and Vice Chair have been actively involved in establishing the B.C. Council of Administrative Tribunals and were elected to the Board of Directors at the first Annual General Meeting in September 1996. The Council held its first education seminar on October 18, 1996 and is planning further seminars for 1997. Both the Canadian and British Columbia Councils offer valuable opportunities for members and staff of a variety of administrative tribunals to discuss issues of common concern, both procedural and substantive, and to share in educational initiatives.
Appendix 7 shows the totals for the budgets and actual expenditures for the last three years and the budget for 1996/97.
Recognizing the need to reduce expenses, beginning in 1993, the Board has effected a number of changes:
a) recommendations and withdrawals are dealt with by desk orders rather than by hearing, thus reducing actual hearing time and travel expenses;
b) pre-hearing conferences have been employed, resulting in orders for exchange of documents as well as other orders which assist in the speedy resolution of the hearing thereby reducing actual hearing time and reducing adjournments;
c) adjournment applications are to be made at least two weeks in advance of the hearing, with reasons, consequently reducing the number of adjournment applications made at hearings and reducing the number of lost hearing days;
d) the Board has been able to make use of the hearing rooms at the Board office in Richmond reducing conference room costs;
e) hearings are often conducted by single member panels and single members sitting with a Consultant rather than three member panels; and
f) hearings on jurisdictional issues, such as the validity of appeals, are usually conducted by telephone conferences.
The Board would like to express continuing gratitude to Maureen Trottier, Ministry of Municipal Affairs and Housing, our liaison with the Ministry. Over the past year, she has given considerable time and energy in finalizing the Board's office reorganization and assisting with the transition.
The Board also appreciates the assistance provided by the Human Resources Branch in finalizing the reorganization.
Lori Wanamaker, Director, Financial Programs Division, and Jim MacAulay, Manager, Financial Planning and Analysis have provided assistance during the staff transition as have other members of the Ministry. The Board is grateful to them for their time and efforts.
In 1993, the Board was faced with many new challenges:
* reintroduction of the annual roll along with a number of other substantive amendments to the Assessment Act;
* physical move from Maple Ridge to Richmond;
* retirement of four of the five full time employees;
* appointment of 15 new Board Members including the Chair; and
* financial constraints.
Four years into these challenges is an appropriate time for the Board to reflect on the aims and objectives it set in 1993.
The training initiatives have equipped Board Members to interpret statutory instruments, to better understand and apply the principles of procedural fairness, to understand the bases underlying the formal Rules of Evidence in order to understand when to apply or relax those Rules, to weigh and apply evidence in arriving at and writing decisions, to provide parties with decisions in a timely fashion, to understand appraisal principles as they apply to decisions under the Assessment Act and to interpret the applicable case law. Training sessions have also emphasized the principles underlying conflict of interest issues, the need for independence and accountability and the importance of consistency in the Board's practices and decisions. Continuing education and training remains a priority.
The Board has made a concerted effort to hear and resolve appeals involving single family residential properties prior to the issuance of the next Assessment Roll. On the other appeals, the Board has continuing consultations with the hearing participants to maximize use of the available hearing time.
Over the past two years, the Board has tested and implemented a guideline for timely issuance of decision following the completion of the hearing.
By implementing procedures for pre-hearing conferences for the more complex appeals, the Board has assisted the parties in identifying issues and resolving appeals prior to the hearing date, or, in some cases, reducing the length of time required for the hearings.
Over the past four years, the Board staff have been instrumental in updating the computer and filing systems to allow greater efficiency and service quality at reduced costs. The office reorganization has also increased efficiency and service quality. Having consideration for the parties' geographical locations, the Registry has continued to schedule an optimum number of hearings in the Richmond facilities thereby reducing accommodation costs.
Despite the disruptions of the office reorganization and shortage of staff, the Registry has successfully met the Board's statutory mandate each year to ensure that appeals are registered and the necessary parties notified and that hearings are scheduled in a timely fashion.
Reducing the backlog of appeals is the Registry’s main priority. Progress was made in 1996 and the Registrar anticipates that the backlog will decrease significantly over the coming year.
The Board is grateful to all of our constituents who have taken the time and interest to engage in consultations and is grateful for the suggestions and cooperation in examining and implementing new procedures. In the coming year, the Board is looking forward to continuing our consultations with members of the Assessment community and the Ministry to address further refinements to the appeal process.
M. Gwendolynne Taylor, Chair
Assessment Appeal Board
APPENDICES NOT AVAILABLE